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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Gateway Inc. v. Carl Pride Get Away

Case No. D2008-0493

 

1. The Parties

The Complainant is Gateway Inc., Irvine, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.

The Respondent is Carl Pride Get Away, Clayton, Missouri, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <gataway.com> is registered with GoDaddy.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2008. On April 1, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On April 1, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint 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 of the Complaint, and the proceedings commenced on April 14, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 4, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 6, 2008.

The Center appointed William R. Towns as the sole panelist in this matter on May 13, 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.

 

4. Factual Background

The Complainant is a manufacturer and distributor of personal computers and related products and services. The Complainant owns valid and subsisting registrations for the trademark GATEWAY and other GATEWAY-formative marks in the United States and in numerous other countries around the world. The Complainant has used the GATEWAY mark in commerce since as early as 1986 in connection with computer and computer related products and services.

The Respondent is the registrant of the disputed domain name <gataway.com>. According to the registrar’s WHOIS records, the disputed domain name was first registered on January 29, 2000. At the time the Complaint in this matter was filed with the Center on March 31, 2008, the Respondent was using the disputed domain name in connection with a website providing advertising links to third party commercial sites, including sites such as “www.shopzilla.com” and “www.discountpc.net”, where both the Complainant’s products and those of its competitors are offered for sale.

Since the filing of the Complaint the Respondent has altered its website to include additional content. The Respondent’s website now includes critical and in some cases derogatory comments regarding the Complainant1, a disclaimer of any affiliation with the Complainant2, and an “open letter” to the Complainant apparently provoked by the filing of the Complaint. Prior to the filing of the Complainant, the Respondent’s website did not contain a disclaimer or commentary of any kind.3 The Respondent website continues to feature advertising links to commercial websites.

 

5. Parties’ Contentions

A. Complainant

The Complainant maintains that the disputed domain name is essentially identical and confusingly similar to its GATEWAY mark, which the Complainant contends is a famous mark. The Complainant points the use of the mark since at least 1986, multiple trademark registrations for GATEWAY in the United States and in at least thirty-seven other countries, extensive and continuous use, and net sales reaching USD 3.9 billion in 2006.

The Complainant asserts that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the domain name in a bad faith attempt to profit from and exploit the Complainant’s GATEWAY mark. According to the Complainant, the Respondent has not been licensed or otherwise authorized to use the Complainant’s mark, and has engaged in the bad faith practice of “typosquatting” in order to divert Internet users to the Respondent’s website, which contains pay-per-click advertising links unrelated to the Complainant, including websites advertising products that compete with those of the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions. As noted above, however, the Respondent has posted an “open letter” to the Complainant on a website that has been substantially revised since the filing of the Complaint, in which the Respondent denies any intent to create confusion and disclaims any responsibility for the content of the advertising links on its website.

 

6. Discussion and Findings

A. Scope of the Policy

The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store, WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. Weber-Stephen Products Co. v. Armitage Hardware, WIPO Case No. D2000-0187. See, Report of the WIPO Internet Domain Name Process, paragraphs 169 and 170. Paragraph 15(a) of the Rules provides that the Panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable.

Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:

(i) The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests with respect to the domain name; and

(iii) The domain name has been registered and is being used in bad faith.

Cancellation or transfer are the sole remedies provided to a complainant under the Policy, as set forth in paragraph 4(i).

Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.

Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in the domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus the consensus view is that paragraph 4(c) shifts the burden to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.

B. Identical or Confusingly Similar

The Complainant has presented uncontested evidence of its registration and use of GATEWAY and GATEWAY-formative trademarks in the United States and elsewhere in the world. At a minimum, the Complainant’s marks are entitled to a presumption of validity by virtue of their registration with the United States Patent and Trademark Office. See EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047.

Under paragraph 4(a)(i) of the Policy the question of identity or confusing similarity is evaluated based on a comparison of the complainant’s mark and the alphanumeric string constituting the domain name at issue. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525. The disputed domain name <gataway.com> differs from the Complainant’s GATEWAY mark only by the substitution of the letter “a” for the letter “e”, a distinction that does not serve to dispel confusing similarity.

Indeed, this is strongly indicative of “typosquatting” – a form of cybersquatting in which a respondent registers and uses a domain name that is a common misspelling or predictable mistyping of a distinctive mark in order to take advantage of typographical errors made by Internet users seeking the complainant’s commercial website. There are a number of Panel decisions that have found confusing similarity under paragraph 4(a)(i) based on evidence of typosquatting. See Wachovia Corporation v. American Consumers First, WIPO Case No. D2004-0150; Red Bull GmbH v. Grey Design, WIPO Case No. D2001-1035.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

C. Rights or Legitimate Interests

As noted above, once the Complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden to the Respondent to come forward with evidence of rights or legitimate interests in the disputed domain name. The Panel is persuaded from the record of this case that a prima facie showing under paragraph 4(a)(ii) has been made. It is uncontested that the Respondent has not been licensed to use the Complainant’s mark or to appropriate the mark for use with domain names. There is evidence in the record from which it fairly may be inferred that the Respondent has engaged in a form of abusive domain name registration commonly known as “typosquatting.” Further, the disputed domain name is being used by the Respondent to divert Internet users to a website what appear to be pay-per-click advertising links to third party commercial websites, some offering products that compete with those of the Complainant.

Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:

(i) before any notice to her of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the domain name, even if she has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Respondent has not submitted a formal response to the Complaint, and in the absence of any such submission this Panel may accept all reasonable inferences and allegations included in the Complaint as true. See Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009.4 In any event, the Panel has carefully reviewed the record in this case, and finds nothing therein that would bring the Respondent’s registration and use of the disputed domain name within any of the safe harbors of paragraph 4(c) of the Policy.

The Respondent has used and continues to use the disputed domain name in connection with a website containing advertising links to other commercial websites. These links serve no apparent purpose other than the generation of pay-per-click revenue. As noted above, it is a fair inference from the record that the Respondent has engaged in typosquatting – the intentional registration and use of the disputed domain name in order to take advantage of typographical errors made by Internet users seeking the Complainant’s commercial website and divert them to the Respondent’s website. See Red Bull GmbH v. Grey Design, WIPO Case No. D2001-1035. The deliberate registration and use of a domain name that is identical or confusingly similar to the Complainant’s widely known mark to generate advertising revenue does not constitute use of the domain name in connection with a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy. See HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, WIPO Case No. D2007-0062.

Nor does the Panel believe that the Respondent can claim rights or legitimate interests based on any claim under paragraph 4(c)(iii) to be using the disputed domain name with a genuine, bona fide criticism site. Paragraph 4(c)(iii) is intended to protect sites that practice genuine, noncommercial criticism,5 and to that end a respondent must demonstrate that the domain name is being used without intent for commercial gain. See Helen Fielding v. Anthony Corbert aka Anthony Corbett, WIPO Case No. D2000-1000. The circumstances of the Respondent’s registration and use of the disputed domain name in this case do not negate such intent for commercial gain. Until the filing of the Complaint, the Respondent’s website was little more than a portal site containing advertising links. The Respondent’s attempts to add “commentary” and a purported disclaimer, coming only after the filing of the Complaint are plainly pretextual.

Accordingly, the Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

D. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or

(ii) circumstances indicating that the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) circumstances indicating that the respondent intentionally is using the domain name in an attempt to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.

The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant is seeking to profit from and exploit the trademark of another. Match.com, LP v. Bill Zag and NWLAWS.ORG, WIPO Case No. D2004-0230.

In this case, the totality of circumstances demonstrates the Respondent’s bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii). The Panel finds that the Respondent has engaged in the abusive practice of typosquatting, deliberately seeking to divert internet users to its website in order to trade on the goodwill developed in the Complainant’s widely known GATEWAY mark. See, e.g., Red Bull GmbH v. Grey Design, WIPO Case No. D2001-1035; Playboy Enterprises International Inc. v. SAND WebNames – For Sale, WIPO Case No. D2001-0094; Telstra Corp. Ltd. v. Warren Bolton Consulting Pty. Ltd., WIPO Case No. D2000-1293. The Respondent is not operating a legitimate criticism site. The content added to the Respondent’s website following the filing of the Complaint, while undoubtedly intended to convey such an impression, is obviously pretextual. The Respondent cannot make a legitimate noncommercial or fair use of a domain name under paragraph 4(c)(iii) of the Policy where bad faith registration and use of the domain name otherwise are indicated. See CBS Broadcasting Inc., f/k/a CBS Inc v. Nabil Z. aghloul, WIPO Case No. D2004-0988; Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014; Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.

 

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 <gataway.com> be transferred to the Complainant.


William R. Towns
Sole Panelist

Dated: May 27, 2008


1 All such commentary is dated either April 1 or April 2, 2008 – immediately following the filing of the Complaint.

2 The purported disclaimer reads added to the Respondent’s website subsequent to the filing of the Complaint reads as follows: “Gataway.com – Not associated with Gateway Computers (some of them … gay people)”.

3 Complaint, Annex G.

4 Some panels have held that a respondent’s lack of response can be construed as an admission that the respondent has no rights or legitimate interests in a disputed domain name. See, e.g., DoThe Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624. Other panel decisions note that adverse inferences may be drawn from a respondent’s failure to reply. See, e.g., Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403.

5 Refer to WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 2.5.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0493.html

 

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