InfoSpace, Inc. v. Grand Slam Co. c/o
Jerry Stein
Claim
Number: FA0401000223027
Complainant is InfoSpace, Inc. (“Complainant”), represented
by Pallavi Mehta Wahi, of Stokes Lawrence, P.S.,
800 Fifth Ave., Suite 4000, Seattle, WA 98104-3179. Respondent is Grand Slam
Co. c/o Jerry Stein (“Respondent”), 8020 W.Sahara, #230, Las Vegas, NV
89117.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <wwdogpile.com>, registered with Gkg.Net,
Inc.
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.
Louis
E. Condon as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on January 2, 2004; the Forum received a hard copy of the
Complaint on January 5, 2004.
On
January 2, 2004, Gkg.Net, Inc. confirmed by e-mail to the Forum that the domain
name <wwdogpile.com> is registered with Gkg.Net, Inc. and that
Respondent is the current registrant of the name. Gkg.Net, Inc. has verified
that Respondent is bound by the Gkg.Net, 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 8, 2004, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
January 28, 2004 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@wwdogpile.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 9, 2004, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the Forum appointed Louis E. Condon 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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wwdogpile.com>
domain name is confusingly similar to Complainant’s DOGPILE mark.
2. Respondent does not have any rights or
legitimate interests in the <wwdogpile.com> domain name.
3. Respondent registered and used the <wwdogpile.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
InfoSpace, Inc., is a global provider of wireless and Internet software and
application services to wireless broadband providers, websites, and merchant
resellers. Complainant provides, inter alia, Internet directory and
search engine services. Through its wholly owned subsidiary, Go2Net, Inc., has
been using the DOGPILE mark since as early as November of 1996 in connection
with many of these services, and has obtained several registrations of the mark
(e.g. U.S. Reg. Nos. 2,401,276 and2,456,655, both claiming a date of first
use in November of 1996). Complainant also operates a website at both the
<dogpile.com> and <dogpile.net> domain names.
Respondent,
Grand Slam Co. c/o Jerry Stein, registered the <wwdogpile.com>
domain name on July 9, 2000, without license or authorization to use the
DOGPILE mark for any purpose. The disputed domain name links to a gambling
website at the <mysportsbook.com> domain name, which in turn links
Internet users to other gambling websites.
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 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 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 Respondent
is identical or confusingly similar to a trademark or service mark in which
Complainant has rights; and
(2) 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.
Complainant has
established rights in the DOGPILE mark through widespread use of the mark in
commerce since 1996, as well as through registrations of the mark on the
Principal Register of the U.S. Patent and Trademark Office. See Men’s
Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under
U.S. trademark law, registered marks hold a presumption that they are
inherently distinctive and have acquired secondary meaning”); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat.
Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use
was continuous and ongoing, and secondary meaning was established).
Respondent’s <wwdogpile.com>
domain name is confusingly similar
to Complainant’s DOGPILE mark. But for the addition of the letter sequence
“ww”, instead of the traditional “www,” the disputed domain name is identical
to Complainant’s mark. See Bank
of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding
that Respondent’s domain name <wwwbankofamerica.com> is confusingly
similar to Complainant’s registered trademark BANK OF AMERICA because it “takes
advantage of a typing error (eliminating the period between the www and the
domain name) that users commonly make when searching on the Internet”); see
also Marie Claire Album v. Geoffrey Blakely, D2002-1015 (WIPO Dec. 23,
2002) (holding that the letters "www" are not distinct in the
"Internet world" and thus Respondent 's <wwwmarieclaire.com>
domain name is confusingly similar to Complainant's MARIE CLAIRE trademark).
Accordingly, the
Panel finds that the <wwdogpile.com> domain name is confusingly similar to Complainant’s DOGPILE mark under
Policy ¶ 4(a)(i).
Respondent is
using the <wwdogpile.com> domain
name to redirect Internet users to the <mysportsbook.com>
domain name, presumably in order to receive referral fees or commissions from
the operator of that gambling website. Using Complainant’s mark in a
typosquatted domain name for such commercial purposes is not a bona fide offering
of goods or services as contemplated by Policy ¶ 4(c)(i), nor can it be a
legitimate noncommercial or fair use of the domain name pursuant to Policy ¶
4(c)(iii). Given the typosquatted nature of the domain name, the Panel also
finds that Policy ¶ 4(c)(ii) does not apply, as there is no evidence that
Respondent is actually “commonly known by” the name “wwdogpile.com.” See
Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA
156839 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s <wwwdinersclub.com> domain name, a typosquatted version of
Complainant’s DINERS CLUB mark, was evidence in and of itself that Respondent
lacks rights or legitimate interests in the disputed domain name vis á vis
Complainant); see also Nat’l Ass’n of
Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21,
2003) (“Typosquatting, as a means of redirecting consumers against their will
to another site, does not qualify as a bona fide offering of goods or services,
whatever may be the goods or services offered at that site.”); see also Medline, Inc.
v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“Considering the
nonsensical nature of the [<wwwmedline.com>] domain name and its
similarity to Complainant’s registered and distinctive [MEDLINE] mark, the
Panel concludes that Policy ¶ 4(c)(ii) does not apply to Respondent”).
Accordingly, the
Panel finds that Respondent does not have rights or legitimate interests in the
<wwdogpile.com> domain
name under Policy ¶ 4(a)(ii).
Traditionally,
typosquatting has been viewed as evidence that a domain name was registered and
used in bad faith, and this case is no exception. By adding the phrase “ww”
(instead of the traditional “www”) to the front of Complainant’s DOGPILE mark
in the disputed domain name, Respondent is seeking to capitalize on the typing
mistakes of Internet users seeking Complainant’s website. Such parasitic use of
Complainant’s mark, in order to gain revenue from the <mysportsbook.com>
domain name, is evidence that the domain name was registered and used in bad
faith. See Canadian Tire Corp., Ltd. v. domain adm’r
no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003)
(holding that the absence of a dot between the “www”and “canadiantire.com” in
the <wwwcanadiantire.com> domain name was likely to confuse Internet
users and evidences bad faith registration and use of the domain name); see
also RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25,
2003) (inferring that Respondent’s registration of the <wwwremax.com>
domain name, incorporating Complainant’s entire mark, was done with actual
notice of Complainant’s rights in the mark prior to registering the infringing
domain name, evidencing bad faith); see also Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini,
D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is 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. Typosquatting is inherently parasitic and of
itself evidence of bad faith.”).
The Panel thus
finds that Respondent registered and used the <wwdogpile.com> domain name in bad faith, and that Policy ¶
4(a)(iii) is satisfied.
Complainant having
established all three elements required under the ICANN Policy, the Panel
concludes that relief should be GRANTED.
Accordingly, it
is Ordered that the <wwdogpile.com> domain name be TRANSFERRED
from Respondent to Complainant.
Louis E. Condon, Panelist
Dated:
February 23, 2004
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