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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

MySpace Inc. v. Will Eom

Case No. D2008-0448

 

1. The Parties

The Complainant is MySpace Inc., Beverly Hills, California, United States of America, represented by Cantor Colburn LLP, United States of America.

The Respondent is Will Eom, Daegu, Republic of Korea.

 

2. The Domain Name and Registrar

The disputed domain name <mypsace.com> is registered with Cydentity, Inc.

 

3. Procedural History

The Complaint, in English, was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 21, 2008. On March 25, 2008, the Center transmitted by email to Cydentity, Inc. a request for registrar verification in connection with the domain name at issue. On March 26, 2008, Cydentity, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On April 9, 2008, the Center informed the Complainant that the language of the registration agreement is Korean, and requested the Complainant to: (i) provide evidence of an agreement between the parties that the proceeding should be in English; or (ii) request that English to be the language of the proceeding. On April 11, 2008, counsel for the Complainant submitted a request that the language of the proceeding be English. The Center verified that the Complaint (subject to the Panel’s determination of the language request) satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent, in both Korean and English, of the Complaint, and the proceedings commenced on April 16, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 6, 2008. On April 23, and May 6, 2008, the Respondent acknowledged receipt of the Center’s correspondence, and requested Korean translations of the documents in English, but did not otherwise respond to the Complaint. Accordingly, the Center notified the Respondent’s default on May 9, 2008.

The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on May 14, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

On May 26, 2008, the Center transmitted to the parties Administrative Panel Procedural Order No. 1 (the “Procedural Order”), in which the Panel requested the Complainant to: (i) submit a Korean translation of the Complaint, by June 9, 2008; and (ii) provide the date of a document attached as an exhibit to the Complaint, namely, a purported copy of the website for the disputed domain name. The Procedural Order also stated, “On receipt of said submissions, if the Respondent may wish to file a Response, the last day for sending the Response to the Complainant and the Center will be June 23, 2008.” On June 6, 2008, the Complainant submitted the requested Korean translation of the Complaint and the document date, which the Center forwarded to the Respondent and the Panel on June 9, 2008. The Respondent did not respond to the translated Complaint.

The Panel determines that the language of the proceeding will be English, as discussed herein.

 

4. Factual Background

The Complainant is the owner of the mark, MYSPACE, registered with the U.S. Patent and Trademark Office, on December 14, 2004, for “Internet based dating, introduction and social networking services.” Publicly available registration documents indicate that the “first use” of the mark occurred in July 2003. The Complainant maintains a website at the domain name <myspace.com>, which has received media attention, including newspaper reports in November 2003.

The Respondent registered the disputed domain name <mypsace.com> on December 18, 2003.

 

5. Parties’ Contentions

A. Complainant

The Complainant argues that: (i) the Respondent’s domain name is identical or confusingly similar to a mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name was registered and is being used in bad faith.

In addition, the Complainant states that MYSPACE is a “famous mark,” Complaint, at 8, with “worldwide recognition,” id. at 9, and that the Respondent has engaged in “typosquatting,” id. at 10. The Complainant also contends that the Respondent’s bad faith is evidenced by the website for the disputed domain name, which offers links to “pornographic and adult content websites.” Id. at 15-16.

B. Respondent

The Respondent did not reply to the Complainant’s contentions. The Respondent did not submit a response to the Complainant’s original Complaint, nor to the Korean translation of the Complaint.

 

6. Discussion and Findings

Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement, unless otherwise agreed by the parties. Importantly, paragraph 11(a) also states that the determination of the language of the proceeding is “subject to the authority of the Panel . . ., having regard to the circumstances of the administrative proceeding.”

The language of the Registration Agreement here is Korean, as the registrar confirmed in its verification response to the Center on March 26, 2008. The Complainant submitted its Complaint in English, and subsequently requested that English be the language of the proceeding “in light of the fact that the content of the web site at the Disputed Domain Name is in English.” There was no evidence of an agreement between the parties as to the language of the proceeding.

In response to correspondence from the Center, the Respondent stated, in Korean, that it did not understand the contents of the documents in English, and requested Korean translations. In reply, the Center informed the parties, in both Korean and English:

Given the circumstances of this case, the Center has decided to:

1) accept the Complaint as filed in English;

2) accept a Response in either English or Korean;

3) appoint a Panel familiar with both languages mentioned above, if available.

The Panel has discretion to determine the language of the proceedings. It may choose to write a decision in either language, or request translation of either party’s submissions.

As set forth in the Procedural Order, the Panel requested that the Complainant provide a Korean translation of the document. All of the Respondent’s correspondence with the Center was in Korean, and there was insufficient evidence in the record to enable the Panel to conclude that the Respondent had the proficiency in the English language to understand the contents of the Complaint.

After the Complainant complied with the Procedural Order, the Respondent failed to submit a response to the translated Complaint. The Respondent may not now complain that it was not given full and fair notice of the action, or that it was denied an opportunity to review the Complainant’s allegations in its preferred Korean language, or to respond to the Complaint. Indeed, the Respondent has been given every reasonable opportunity to defend its cause, but other than requesting a translated copy of the Complaint, has declined to do so.

The Complainant’s request to proceed in English is still pending. In light of all circumstances, the Panel determines that the language of this proceeding will be English.

Turning to the merits of the case, in order to prevail, the Complainant must prove the three elements specified in paragraph 4(a) of the Policy. These are addressed in turn.

A. Identical or Confusingly Similar

The Complainant has rights in its mark, MYSPACE. The disputed domain name <mypsace.com> is confusingly similar to the Complainant’s mark. The “mypsace” portion of the domain name merely transposes the third and fourth letters of MYSPACE. Indeed, the disputed domain name <mypsace.com> could too easily be mistaken for <myspace.com>, whose website the Complainant operates and which contains the MYSPACE mark.

The Panel finds that the Complainant has proven the first element.

B. Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the domain name. Paragraph 4(c) of the Policy provides a non-exhaustive list of ways in which the Respondent may demonstrate rights or legitimate interests in the domain name. There is no evidence in the record to support any of the possibilities described in paragraph 4(c), nor is the Panel able to find any other circumstances that would demonstrate the Respondent’s rights or legitimate interests in <mypsace.com>.

The Panel finds that the second element is established.

C. Registered and Used in Bad Faith

The Complainant is also required to show that the domain name “has been registered and is being used in bad faith,” under paragraph 4(a)(iii) of the Policy. Paragraph 4(b) provides a non-exhaustive list of circumstances in which “registration and use of a domain name in bad faith” can be shown. The Panel determines that in the present case, bad faith is shown under paragraph 4(b)(iv), in that “by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] web site . . ., by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent’s] web site . . . .”

As of the Panel’s decision, Internet users who type in the disputed domain name are taken to a website at the top of which appears the text:

Welcome to

Slip into something more suitable

Appearing below this text are links for the terms “mops,” “casino,” “cleaning services,” “casinoes” [sic], “janitorial,” and “casino gaming.” Before the Complainant filed its Complaint, the evidence indicates that the website for the domain name contained the same “Slip into something more suitable” phrasing, and in addition, photographs of scantily clad women and references to “Porn Videos,” “Live Sex Chat,” and “Hardcore,” among others.

The Panel agrees with the Complainant that the disputed domain name is one of typosquatting, or “the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.” National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011. “Typosquatting is inherently parasitic and of itself evidence of bad faith.” Id. The Panel determines that the typosquatting nature of the domain name provides a further independent ground of bad faith in registration and use.

The Panel finds that the third element is demonstrated.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <mypsace.com> be transferred to the Complainant.


Ilhyung Lee
Sole Panelist

Date: June 30, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0448.html

 

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