DECISION

 

Compaq Information Technologies Group, L.P. v. Seocho

Claim Number: FA0201000103879

 

PARTIES

Complainant is Compaq Information Technologies Group, L.P., Houston, TX (“Complainant”) represented by David M. Kelly, of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P..  Respondent is Seocho, Seoul (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <compq.com>, registered with BulkRegister.com, Inc..

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

 

 James P. Buchele as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on January 16, 2002; the Forum received a hard copy of the Complaint on January 17, 2002.

 

On January 17, 2002, BulkRegister.com, Inc. confirmed by e-mail to the Forum that the domain name <compq.com> is registered with BulkRegister.com, Inc. and that Respondent is the current registrant of the name.  BulkRegister.com, Inc. has verified that Respondent is bound by the BulkRegister.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On January 17, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 6, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@compq.com by e-mail.

 

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

 

On February, 18, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed  James P. Buchele as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.”  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

1. The domain name <compq.com> and Complainant’s trademark COMPAQ are confusingly similar.

 

2. Respondent is not using and has not used or is not demonstrating and has not demonstrated an intent to use the disputed domain name in connection with a bona fide offering of goods and services,  Second, Respondent is not and has not been commonly known as  <compq.com>.  Finally, by diverting users to a website that offers competing goods and services, Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.  Therefore, Respondent cannot demonstrate its rights and legitimate interest in the disputed domain name.

 

3. By registering a domain name that is confusingly similar to Complainant’s mark and then diverting users to a website that offers competing goods and services, Respondent has registered the disputed domain name, primarily for the purpose of disrupting Complainant’s business.  Respondent uses <compq.com> to intentionally attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s famous mark COMPAQ, as to the source, sponsorship, affiliation and endorsement of Respondent’s website.  Furthermore, Respondent’s activities clearly constitute “typosquatting” which has been consistently considered bad faith.  Finally, because Respondent knew of Complainant’s famous COMPAQ mark, its unauthorized use of the disputed domain name for commercial gain also suggests opportunistic bad faith.  Therefore, Respondent has acted in bad faith in registering and using the domain name <compq.com>.   

 

B. Respondent

No Response was received.

 

FINDINGS

Since its establishment in 1982, Complainant has been a pioneer in the personal computer industry and is currently a global leader in the development and manufacturing of computer hardware and software.  Complainant’s goods and services are currently sold in over 200 countries.  Complainant recorded over $42 billion in sales in 2000 and spends millions of dollars annually to advertise and promote its mark COMPAQ and its branded products and services. 

 

Complainant holds six U.S. federal trademark registrations in COMPAQ; Registration No. 1,467,066 issued December 1, 1987, Registration No.1,264,107 issued December 1, 1987, Registration No. 2,127,189 issued January 6, 1998, Registration No. 1,993,756 issued August 16, 1996, Registration No. 1,993,755 issued August 13, 1996, and Registration No. 2,183,367 issued August 25, 1998.

 

Complainant also owns the domain name <compaq.com>, which it registered on April 20, 1995 and has used to operate a website promoting its COMPAQ mark in connection with the offering of computer related goods and services.

 

Respondent registered <compq.com> on May 24, 2001.  Respondent uses the disputed domain name to redirect users to a website that offers goods and services of one of Complainant’s main competitors, “Gateway.”

 

Respondent has a history of “typosquatting” examples include: <expeadia.com>, and <googlr.com>.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

 

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

 

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

 

(1) 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

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

 

Identical and/or Confusingly Similar

Complainant has established its rights to COMPAQ through its extensive use and registration in the United States and throughout the world.

The disputed domain name <compq.com> differs from Complainant’s famous mark COMPAQ only by excluding the letter “a.”  This small change, which results in a misspelling of Complainant’s famous mark, does not diminish the confusingly similarity between the mark COMPAQ and <compq.com>.  See Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the Complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also Compaq Information Technologies Group, L.P. v Scott Jones, FA 99091 (Nat. Arb. Forum Oct. 4, 2001) (finding <compaqq.com> confusingly similar to COMPAQ since it is easy for a user to accidentally type <compaqq.com> when trying to reach the Complainant's website <compaq.com>); see also Expedia, Inc. v. Seocho, D2001-1088 (WIPO Nov. 4, 2001) (finding that the domain name <expeadia.com> is confusingly similar to Complainant’s EXPEDIA mark).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

Complainant has established its rights in COMPAQ.  Respondent has failed to file a Response in the matter.  It is well established that when Respondent fails to file a response, the Panel will presume that Respondent has no rights or legitimate interests in the disputed domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

 

Respondent is using a domain name that is confusingly similar to Complainant’s famous mark to divert users to a website that offers services of one of Complainant’s main competitors; therefore, Respondent’s domain name is not connected with a bona fide offering of services.  Thus, Respondent fails to satisfy Policy ¶ 4(c)(i).  See The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that The disputed domain names were confusingly similar to Complainant’s mark.  Respondent’s use of the domain names to sell competing goods was an illegitimate use and not a bona fide offering of goods).

 

Based on the evidence provided, Respondent is not or has not been commonly known as <compq.com>, thus Respondent has failed to satisfy Policy ¶ 4(c)(ii).  See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

 

Respondent registered and used a domain name that is confusingly similar to Complainant’s famous trademark and diverts users to a website which offers services of one of Complainant’s main competitors.  Without any evidence presented to the contrary, the Panel can presume that Respondent has diverted business from Complainant.  See Hewlett Packard Co. v. Full Sys., FA 94637 (Nat. Arb. Forum May 22, 2000) (holding that Respondent’s failure to offer any evidence permits the inference that the use of the Complainant’s mark in connection with the Respondent’s website is misleading and Respondent is intentionally diverting business from the Complainant). Therefore, Respondent’s use of a domain name which misspells Complainant’s famous trademark and diverts users to a website that offers a services of Complainant’s main competitor is not a legitimate noncommercial or fair use of <compq.com>.  See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from the Complainant's site to a competing website).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.   

 

Registration and Use in Bad Faith

Respondent has registered and used <compq.com> to divert users to a website that provides services of one of Complainant’s main competitors.  Respondent has a history of similar actions.  See Google, Inc. v. Goog LR f/k/a Seocho, FA 98462 (Nat. Arb. Forum Sept. 28, 2001) (transferring <googlr.com> to Complainant who holds GOOGLE); see also Pfizer, Inc. v. Seocho and Vladimir Snezko, D2001-1199 (WIPO Nov. 28, 2001) (transferring <wwwpfizer.com> to Complainant who holds PFIZER); see also Expedia, Inc. v. Seocho, D2001-1088 (WIPO Nov. 4, 2001) (transferring <expeadia.com> to Complainant who holds EXPEDIA).  Therefore, Respondent has violated Policy ¶ 4(b)(ii).  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that when Respondent has a history of “typosquatting” and registers a domain name that misspells Complainant’s trademark, Respondent is in bad faith as outlined in Policy ¶ 4(b)(ii)).

 

Respondent is using <compq.com> to connect with a website that offers goods and services which compete with Complainant.  Absent any evidence to the contrary, the Panel can assume that Respondent registered the disputed domain name that is confusingly similar to a famous mark primarily for the purpose of disrupting Complainant’s business.  See Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business) .

 

Respondent’s registration and use of <compq.com>, a misspelling of Complainant’s famous trademark, to divert users to a website that offers services of one of Complainant’s main competitors, is evidence that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s famous trademark.  Thus, Respondent’s registration and use are evidence of bad faith as outlined in Policy ¶ 4(b)(iv).  See Google, Inc. v. Goog LR f/k/a Seocho, FA 98462 (Nat. Arb. Forum Sept. 28, 2001) (finding that since Respondent linked <googlr.com> to a competing website of Complainant, Respondent’s registration and use supports a finding of bad faith, pursuant to the Policy ¶ 4(b)(iv)); see also Compaq Information Technologies Group, L.P. v Scott Jones, FA 99091 (Nat. Arb. Forum Oct. 4, 2001) (finding bad faith where Respondent redirected users of <compaqq.com> to another website for commercial gain by creating a likelihood of confusion between Complainant’s mark COMPAQ and the disputed domain name <compaq.com>).

 

Finally, Respondent’s registration and use of <compq.com>, which is a misspelling of Complainant’s mark, indicates the common practice of "typosquatting." Such evidence further supports a finding of bad faith.  See Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (awarding <davemathewsband.com> and <davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to Complainant).

   

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.   

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief be hereby granted.

 

Accordingly, it is Ordered that the domain name <compq.com> be transferred from Respondent to Complainant.

 

 

 James P. Buchele, Panelist

 

Dated : February 25, 2002

 

 

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