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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Florida Department of Management Services v. Domain Names, Administration / Name Administrator / Domain Admin / Domain, Administration

Case No. D2009-0403

1. The Parties

The Complainant is the Florida Department of Management Services of Tallahassee, Florida, United States of America ("USA"), represented internally by its counsel.

The Respondents are:

Domain Names, Administration of Saint Kitts and Nevis;

Name Administrator of Hong Kong SAR of China;

Domain Admin of Saint Kitts and Nevis; and

Domain, Administration of USA.

2. The Domain Names and Registrar

The disputed domain names <myfla.org>, <myfl.org>, <myfolrida.com> and <myforida.com> ("the Domain Names") are registered with Moniker Online Services, LLC (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 25, 2009, against Domain Names Administration of Saint Kitts. The Complainant informed the Center by email the following day that since the Complaint was filed, the addresses of the registrants had been changed to include addresses in Hong Kong SAR of China and California.

The Center transmitted its request for registrar verification to the Registrar on March 26, 2009. The Registrar responded on March 31, 2009, stating that it had received a copy of the Complaint, that the Domain Names were registered with it, that the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP") applied to the Domain Names, that the Domain Names were locked, and that the

registration agreement was in English. The Registrar did not dispute that the registrant had submitted in the registration agreement to the jurisdiction of the courts at the Registrar`s principal office.

The Registrar also provided the full contact details on its Whois database in respect of the Domain Names; these differed from the Complaint as originally filed. The Center so informed the Complainant by email on March 31, 2009, and invited the Complainant to submit an appropriate amendment to the Complaint. The Complainant filed an amendment to the Complaint on March 31, 2009 and a second amendment on April 7, 2009.

The Center verified that the Complaint together with the amendments to the Complaint satisfied the formal requirements of the UDRP, 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 8, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was April 28, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on April 29, 2009.

The Center appointed Jonathan Turner as the sole panelist in this matter on May 7, 2009. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file and having considered the procedural issue discussed below, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.

4. Procedural Ruling

In accordance with paragraph 3(c) of the Rules, a Complaint can relate to more than one domain name provided that the domain names are registered with the same domain name holder. It is not clear when the condition that the domain names must be registered with the same domain name holder has to be satisfied: should it be the date when the Complaint was filed with the Center, or when the proceeding was commenced in accordance with paragraph 4(c) of the Rules by the Center`s completion of its responsibilities in connection with forwarding the Complaint to the Respondent, or some other date?

Regardless of these distinctions, however, in this case the Panel is satisfied by the circumstances in which the registration details were changed that all of the Domain Names continued to be registered in reality to the same single person or entity throughout the period between the filing of the Complaint and its forwarding to the Respondent. Accordingly, the Panel finds that the Complaint complies with paragraph 3(c) of the Rules.

5. Factual Background

The Complainant is an administrative agency of the State of Florida and is charged with providing an integrated electronic system for deploying government products, services and information. The domain name <myflorida.com> was registered by the Complainant in 1999 and has been used since 2000 as the State of Florida`s official portal. It receives an average of 4 million page views per month.

The Complainant registered MYFLORIDA and MYFLORIDA.COM as trademarks in the USA with filing date September 12, 2000 and registration dates June 3, 2003 and June 10, 2003, respectively.

The Domain Names were registered by the Respondent on the following dates:

<myforida.com> April 8, 2004

<myfolrida.com> March 17, 2006

<myfl.org> February 16, 2004

<myfla.org> April 18, 2007

The Domain Names resolved at one time to a website at "www.myforida.com". The home page of this website carries a banner with the words "Welcome to myforida.com" and "For resources and information on Child support and the state of florida" and displays pictures of the United States` flag and the White House in Washington D.C. The pages of the website contain sponsored links, some of which have wording referring to State Authorities (such as "State Government") but link to private websites.

The Complainant sent a series of cease and desist letters to the Respondent or the privacy service identified in the contact details for the Domain Names from February 2008 onwards. On or about March 24, 2009 the Respondent`s website carried a disclaimer stating: "This website is not affiliated with MyFlorida.Com or the State of Florida".

6. Parties` Contentions

A. Complainant

The Complainant contends that the Domain Names are confusingly similar to its registered marks MYFLORIDA and MYFLORIDA.COM. It points out that the Domain Names <myfolrida.com> and <myforida.com> are obvious examples of "typo-squatting" and that <myfla.org> and <myfl.org> are the equivalent of <myflorida.com> using common and recognized abbreviations for "Florida".

The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Names and that it registered and is using them in bad faith. The Complainant alleges that the Respondent presumably generates click-through revenue and reaps a commercial benefit from the sponsored links. The Complainant characterises the use of the Domain Names as a blatant act of cyber-piracy. The Complainant also relies on the misleading contact details provided by the Respondent.

The Complainant requests a decision that the Domain Names be transferred to it.

B. Respondent

As stated above, the Respondent did not reply to the Complainant`s contentions.

7. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding in relation to each of the Domain Names, the Complainant must prove (i) that the Domain Names are identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Names; and (iii) that the Domain Names have been registered and are being used in bad faith.

In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent`s default as it considers appropriate. This includes the acceptance of plausible evidence in the Complaint which has not been disputed.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has registered and unregistered rights in the marks MYFLORIDA and MYFLORIDA.COM.

The Panel further finds that the Domain Names are confusingly similar to these marks. As regards the Domain Names <myfolrida.com> and <myforida.com>, Internet users are readily liable to be confused as a result of mistyping "Folrida" or "Forida" instead of "Florida".

As regards the Domain Names <myfla.org> and <myfl.org>, the letters "my" are an identifiable word and "Fla" and "Fl" are often used as abbreviations for "Florida". These domain names may therefore be seen as combining the word "my" followed by an abbreviation of "Florida". In these circumstances, some Internet users familiar with the Complainant`s marks would be liable to assume that the Complainant has adopted these as alternative domain names for accessing its portal.

This assessment is further substantiated by the fact that the Respondent at one time directed the Domain Names <myfla.org> and <myfl.org> to its website at "www.myforida.com", which has evidently been set up as described above (under Factual Background) to take advantage of confusion with the Complainant`s marks. This indicates that the Respondent believed that Internet users are liable to confuse these Domain Names with the Complainant`s marks. Some weight should be attached to this consideration in the absence of any explanation on the part of the Respondent.

The first requirement of the UDRP is satisfied.

B. Rights or Legitimate Interests

The Panel finds that the Respondent has not used the Domain Names in connection with a bona fide offering of goods or services and has not made preparations to do so. On the contrary the Respondent`s use of the Domain Names has been in bad faith in order to obtain click-through commissions from its sponsored links by misleading Internet users into supposing that its website is that of the Complainant.

The Panel further finds that the Respondent is not commonly known by the Domain Names and has not made legitimate noncommercial or fair use of them. The Panel considers that there is no other basis on which the Respondent could claim rights or legitimate interests in respect of the Domain Names.

The Panel concludes that the second requirement of the UDRP is satisfied in relation to the Domain Names.

C. Registered and Used in Bad Faith

The Panel finds that by using the Domain Names, the Respondent has intentionally attempted to attract Internet users to its website by creating a likelihood of confusion with the Complainant`s marks MYFLORIDA and MYFLORIDA.COM as to the source, sponsorship, affiliation or endorsement of that website and of the services on it, for commercial gain in the form of click-through commissions from sponsored links.

In accordance with paragraph 4(b)(iv) of the Policy, these circumstances are evidence of registration and use of the Domain Names in bad faith. This presumption is not displaced by any material on the file. Accordingly, the Panel finds that the Domain Names were registered and are being used in bad faith, and that the third requirement of the UDRP is satisfied in relation to them.

8. 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 Names <myfla.org>, <myfl.org>, <myfolrida.com> and <myforida.com> be transferred to the Complainant.


Jonathan Turner
Sole Panelist

Dated: May 18, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-0403.html

 

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