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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Gocompare.com Limited. v. Blue Sky Internet Technology

Case No. D2008-1525

1. The Parties

Complainant is Gocompare.com Limited, of Newport, Gwent, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Bevan Brittan, LLP, also of the United Kingdom.

Respondent is Blue Sky Internet Technology of Amman, Irbid, Jordan.

2. The Domain Name and Registrar

The disputed domain name <gocompre.com> is registered with Answerable.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on October 6, 2008. On October 7, 2008, the Center transmitted by email to Answerable.com a request for registrar verification in connection with the domain name at issue. On October 9, 2008, Answerable.com transmitted by email to the Center its verification response, confirming that Respondent is listed as the registrant, providing contact information, and confirming other details of the registration. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 14, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 3, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 4, 2008.

The Center appointed Debra J. Stanek as the sole panelist in this matter on November 20, 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

Complainant owns and operates an insurance, financial services, business and consumer utilities aggregation and comparison websites at “www.gocompare.com” and “www.gocompare.co.uk”. It began operating under the Gocompare name in November 2006 and owns several United Kingdom trademark registrations and one Community Trademark registration for several GOCOMPARE marks, including GOCOMPARE, GO COMPARE, GOCOMPARE.COM, and GOCOMPARE.CO.UK. The earliest filing date of these is October 2006 (for GOCOMPARE.COM).

Respondent registered the domain name sometime after February 2008 and uses it for a website that features pay-per-click links offering insurance services.

5. Parties’ Contentions

A. Complainant

Complainant was incorporated in April 2006 and began trading under the name Gocompare in November 2006. Complainant began advertising its services online in January 2007, and in March 2007 it commenced a high profile television advertising campaign. On average, Complainant spends in excess of ВЈ20 million per year on marketing and promoting its brand and advertising its services. Approximately 60% of this amount relates to online marketing and promotion.

Complainant owns and operates an insurance, financial services, business and consumer utilities aggregation and comparison website at “www.gocompare.com” and “www.gocompare.co.uk”, amongst other addresses.

Complainant owns:

United Kingdom trademark registrations for the marks GOCOMPARE, GO COMPARE, GOCOMPARE.COM, and GOCOMPARE.CO.UK for advertising and price comparison services, with filing dates in 2006 and 2007.

A Community Trade Mark for the mark GOCOMPARE.COM plus, for similar services as well as insurance and financial services, with a 2006 filing date.

By reason of its extensive use, promotion and advertising of its business, its marks, and its website, Complainant has substantial goodwill and reputation in the name Gocompare in the field of business and consumer aggregation and comparison services, insurance services and financial services. The name Gocompare is well known in the United Kingdom and elsewhere.

The disputed domain name was registered on March 25, 2007 by another entity. Complainant believes that it was transferred to Respondent from the previous registrant at some point between February 2008 (when Complainant’s solicitors last wrote to the previous registrant, Dealwave) and September 2008 (when Complainant’s solicitors first wrote to PrivacyProtect.org).

Complainant’s solicitors wrote to the then-registrant of the disputed domain name (Dealwave) requesting that it be voluntarily transferred to Complainant. No response was received. Complainant believes that Dealwave transferred the domain name to Respondent (who subsequently began using the privacy service offered by PrivacyProtect.org) to avoid further correspondence and to prevent Complainant from filing a domain name Complaint against Dealwave.

At the time the initial letter of complaint, the disputed domain name directed visitors to a website featuring pay-per-click links offering insurance services. The links included links to websites owned and operated by competitors of Complainant.

The disputed domain name currently resolves to a website featuring pay-per-click links offering insurance services. The links include links to Complainant’s website and links to its competitors.

The disputed domain name is self evidently confusingly similar to Complainant’s well-known and highly distinctive marks, phonetically, visually and conceptually. It is identical to the GOCOMPARE.CO.UK mark except for the omission of the letter “a” and replacement of the suffix “.co.uk” with “.com”, and to the mark GOCOMPARE.COM, again, except for the omission of the letter “a” and addition of the suffix “.com”).

It is also similar to Complainant’s other marks and Complainant’s corporate name and trading name, except for the omission of the letter “a”, as well as Complainant’s own domain name, <gocompare.com>, which Complainant has been using since November 2006. The variations are insufficient to distinguish the disputed domain name from Complainant’s marks, trading name and domain name.

The registration and use of the disputed domain name is likely to falsely lead the public to believe that Respondent and the website to which the disputed domain name resolves is sponsored by, affiliated to, or otherwise associated with, Complainant, and will lead to confusion in the minds of the public.

Complainant submits that Respondent has no rights or legitimate interests in the disputed domain name, for the following reasons:

The disputed domain name was transferred to Respondent at some point between February and September 2008. At that time Complainant had (and still has) a considerable presence on the Internet and had built up a substantial reputation in the Gocompare name in the United Kingdom and elsewhere. Further, at that time, Complainant had (and still has) common law trademark rights in the name which it had been accruing since November 2006 when it first offered its services to the public on its website. Between November 2006 and February, Complainant spent £23 million on advertising and marketing its services and 9 million unique visitors had visited Complainant’s website. Complainant asserts that Respondent was aware of Complainant and the nature of Complainant’s business on, and before, the date on which the disputed domain name was registered by Respondent.

Complainant believes that Respondent is not or has never been known by the name Gocompare or by any confusingly similar name. The WhoIs information associated with the disputed domain name provides no indication that Respondent is known by the names “gocompare” or “gocompre

Complainant has not authorised, licensed or otherwise consented to Respondent’s registration of the disputed domain name or Respondent’s use of the mark GOCOMPRE, which Complainant asserts is confusingly similar to its trademarks.

Complainant is not aware that Respondent owns any registered trademarks containing the phrase “gocompare” or any similar term. Even if Respondent had accrued rights in the mark GOCOMPRE since the registration of the disputed domain name (which is denied by Complainant), any such rights would be significantly pre-dated by Complainant’s own rights.

Complainant submits that the disputed domain name was registered, has been used and continues to be used in bad faith. It relies upon the following:

At the time of the registration of the disputed domain name by Respondent, the name Gocompare was already well-known in the United Kingdom and elsewhere (including to those in the wider English speaking world with access to the Internet, by virtue of Complainant’s extensive online advertising campaigns). Complainant has created substantial goodwill in the name Gocompare since Complainant began trading in November 2006.

Respondent will no doubt have been aware that prior to its registration of the disputed domain name, there was substantial reputation and goodwill associated with the mark GOCOMPARE, which inures and continues to inure to Complainant. The majority of the links on the website to which the disputed domain name resolves relate either to Complainant or to competitors of Complainant in the field of business and consumer aggregation and comparison services, insurance services and financial services, for which Complainant is very well known.

Complainant asserts that Respondent has intentionally registered the disputed domain name, being a misspelling of the words “gocompare”, with the intent to intercept traffic from its intended destination, being Complainant’s own website. The website to which the disputed domain name resolves is intended to be viewed by English speaking Internet users (the content of the website is in English) but the phrase “gocompre” has no meaning in the English language. Internet users and customers or potential customers of Complainant intending to visit Complainant’s website may easily mistype Complainant’s trading name or web address (by omitting to include the letter “a”) which would lead them to the website to which the disputed domain name resolves. Further, Complainant considers that it is implausible that there is any legitimate reason for Respondent’s choice of domain name that both incorporates Complainant’s trademark and is virtually identical to Complainant’s own domain name that is used to provide services to its customers. Complainant therefore asserts that the registration and use of the disputed domain name is a clear case of typo-squatting.

Complainant believes that Respondent has used, and continues to use, the domain name in an attempt to take advantage of Complainant’s substantial reputation and its prominent presence on the Internet in order to confuse the public to the detriment of Complainant and to gain financially as a result of the pay-per-click links that appear on the website to which the disputed domain name resolves, where the goods and services offered under those links are identical to the goods and services covered by Complainant’s trademarks. The disputed domain name currently resolves to a website which prominently includes pay-per-click links to websites offering car and travel insurance and financial services, including a link to Complainant’s own website and competitors of Complainant. Complainant asserts that Respondent is, for its own commercial gain, diverting Internet users looking for Complainant’s website and services to other websites (including Complainant’s own website) that appear as links on the website to which the disputed domain name resolves. Complainant contends that such use cannot be considered bona fide or a legitimate noncommercial or fair use of the disputed domain name. Complainant refers to the decision in Baccarat SA v. Web Domain Names, WIPO Case No. D2006-0038 (“The disputed domain name links to a web-site that includes links to other commercial web-sites. The Panel finds that providing such links, Respondent most likely obtains a financial return through visitors that were originally looking for Complainant and its products.”); and

Respondent has failed to reply to the email submitted by Complainant’s solicitors through the “www.privacyprotect.org” website in September 2008.

The registration of the disputed domain name and its subsequent use by Respondent is a deliberate attempt by Respondent to attract, for commercial gain, Internet users to another online location by creating a likelihood of confusion with Complainant’s trademarks such as the public is likely to falsely believe that the site to which the disputed domain name resolves is sponsored, endorsed, or authorised by or in association with Complainant. Complainant believes this has been done for fraudulent purposes.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

In order to prevail, Complainant must prove, as to the disputed domain name, that:

(i) It is identical or confusingly similar to a mark in which Complainant has rights.

(ii) Respondent has no rights or legitimate interests in respect to it.

(iii) It has been registered and is being used in bad faith.

Policy, paragraph 4(a). The Policy sets out examples of circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent’s bad faith registration and use, see Policy, paragraph 4(b).

Although Respondent has not answered the Complaint, a default does not automatically result in a finding for Complainant. Rather, Complainant continues to have the burden of establishing each of the required elements. The Panel may, however, draw such inferences from the default as it considers appropriate. See Rules, paragraph 14(b).

A. Identical or Confusingly Similar

Complainant has established its rights in the GOCOMPARE and GOCOMPARE.COM mark by virtue of the evidence of its United Kingdom trademark and Community Trademark registrations and its evidence of use of the mark.

The disputed domain name is not identical to Complainant’s mark. As a general matter, a domain name is likely to be deemed confusingly similar to a mark if it incorporates the mark or a variation of the mark. Here, the domain name incorporates a very slight variation by deleting the letter “a.” The appearance of the domain name is virtually identical to that of Complainant’s GOCOMPARE.COM mark. The pronunciation of the two is also quite similar. While the connotation may be slightly different, the overall impression of the domain name is that it is simply a misspelling of Complainant’s mark.

Accordingly, the Panel finds that Respondent’s domain name is confusingly similar to a mark in which Complainant has rights.

B. Rights or Legitimate Interests

The Panel, consistent with the consensus view, finds that Complainant may establish that Respondent has no rights or legitimate interests in respect of the domain name by making a prima facie showing that a respondent lacks rights or legitimate interests. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Question 2.1 (once a complainant makes prima facie case, respondent has burden of showing rights or legitimate interests in the domain name).

Paragraph 4(c) of the Policy sets out the following examples:

(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are 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 Panel finds that Complainant has made a prima facie showing as to this element.

It does not appear that Respondent engaged in or could under the circumstances have engaged in any legitimate use of the domain name. There is no reason to believe, from the WhoIs record or otherwise, that Respondent is or could be known by the domain name. It does not appear that Respondent is making a legitimate noncommercial or fair use of the domain name.

Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Complainant must establish that the disputed domain name was registered and is being used in bad faith. The Policy itself sets out four sets of circumstances, evidence of which can establish bad faith, see Policy, paragraph 4(b)(i)-(iv):

(i) Registering the domain name primarily to sell it for more than documented out-of-pocket costs, see Policy, paragraph 4(b)(i).

(ii) Registering the domain name to prevent the owner of the trademark from reflecting the mark in a domain name, where there is a pattern of such conduct, see Policy, paragraph 4(b)(ii).

(iii) Registering the domain name primarily to disrupt the business of a competitor, see Policy, paragraph 4(b)(iii).

(iv) Using the domain name to intentionally attempt to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement, see Policy, paragraph 4(b)(iv).

Complainant’s rights in its marks predate the registration and use of the disputed domain name. Complainant’s rights in its marks appear to be well-established in the United Kingdom and elsewhere. The Panel believes that it is likely that the domain name was registered with Complainant’s marks in mind. The Panel concludes that the original registration of the domain name, on the heels of Complainant’s television advertising campaign, and the subsequent registration of the disputed domain name in the name of Respondent was not coincidental.

Further, the Panel has already concluded that Respondent has no right or legitimate interest in the domain name and that the use of the domain name was not in connection with a bona fide offering of goods or services.

Under these circumstances, combined with the adverse inferences drawn by Respondent’s failure to respond, the Panel finds that Complainant has established that Respondent has registered and is using the domain name in bad faith.

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, <gocompre.com>, be transferred to Complainant.


Debra J. Stanek
Sole Panelist

Dated: December 4, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1525.html

 

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