The Weather Underground, Inc. v. Click Cons. Ltd
Claim Number: FA0802001152428
Complainant is The Weather Underground, Inc. (“Complainant”), represented by Brian
A.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <www-wunderground.com>, registered with Capitoldomains, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 19, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 20, 2008.
On February 21, 2008, Capitoldomains, LLC confirmed by e-mail to the National Arbitration Forum that the <www-wunderground.com> domain name is registered with Capitoldomains, LLC and that Respondent is the current registrant of the name. Capitoldomains, LLC has verified that Respondent is bound by the Capitoldomains, LLC 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 February 22, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 13, 2008 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@www-wunderground.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 19, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 <www-wunderground.com> domain name is confusingly similar to Complainant’s WUNDERGROUND.COM mark.
2. Respondent does not have any rights or legitimate interests in the <www-wunderground.com> domain name.
3. Respondent registered and used the <www-wunderground.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Weather Underground, Inc., is a
Respondent, Click Cons. Ltd, registered the <www-wunderground.com> domain name on September 2, 2007. Respondent is using the disputed domain name to display a list of hyperlinks, many of which advertise competing weather informational and advisory services.
Complainant submitted evidence illustrating that Respondent has been ordered by UDRP panels on many prior occasions to transfer disputed domain names that infringed upon the rights of others to the respective complainants in those proceedings. See, e.g., TB Proprietary Corp. v. Click Cons. Ltd., FA 858828 (Nat. Arb. Forum Jan. 19, 2007); see also Enter. Rent-A-Car Co. v. Click Cons. Ltd., FA 869453 (Nat. Arb. Forum Jan. 25, 2007); see also Publix Asset Mgmt. Co. v. Click Cons. Ltd., FA 874479 (Nat. Arb. Forum Feb. 13, 2007).
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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 asserts rights to the WUNDERGROUND.COM mark through its USPTO trademark registration, and its extensive use of the mark. The Panel finds this evidence sufficient to confer rights in the mark to Complainant pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Diners Club Int’l Ltd. v. Rulator Corp., FA 967678 (Nat. Arb. Forum June 5, 2007) (conferring rights in the DINERS mark to the complainant based upon its USPTO trademark registration).
Complainant contends that the <www-wunderground.com> domain name is confusingly similar to its WUNDERGROUND mark. The disputed domain name contains Complainant’s mark in its entirety and merely places “www” and a hyphen as a prefix to the mark. The use of the “www” followed by a hyphen (or “www dash”) prefix is merely a slight modification of the customary “www” followed by a period (or “www dot”) prefix found on most domain names. The Panel finds that the use of the “www dash” prefix does nothing to distinguish the disputed domain name from Complainant’s mark that is fully contained with the disputed domain name under an analysis of Policy ¶ 4(a)(i). See Sony Kabushiki Kaisha v. EOS1/EOS1, Inc., FA 493110 (Nat. Arb. Forum July 15, 2005) (finding the <www-sony.com> domain name to be confusing similar to the SONY mark); see also Amazon.com v. J J Domains, FA 514939 (Nat. Arb. Forum Sept. 2, 2005) (find the <www-amazon.com> domain name to be confusingly similar to the AMAZON mark).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <www-wunderground.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by
the <www-wunderground.com>
domain name, and Complainant has never authorized, licensed or otherwise
permitted Respondent to use its WUNDERGROUND.COM mark. Since the WHOIS information identifies
Respondent as “Click Cons. Ltd,” the Panel finds that Respondent cannot
establish rights or legitimate interests in the <www-wunderground.com> domain name pursuant to Policy ¶
4(c)(ii). See Reese v. Morgan, FA 917029 (Nat.
Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known
by the <lilpunk.com> domain name as there was no evidence in the record showing
that the respondent was commonly known by that domain name, including the WHOIS
information as well as the complainant’s assertion that it did not authorize or
license the respondent’s use of its mark in a domain name); see also Instron
Corp. v. Kaner, FA 768859 (Nat. Arb.
Forum Sept. 21, 2006) (finding that the respondent was not commonly known by
the <shoredurometer.com> and <shoredurometers.com> domain names
because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic
Equip’t as the registrant of the disputed domain name and there was no other
evidence in the record to suggest that the respondent was commonly known by the
domain names in dispute).
Respondent is using the <www-wunderground.com>
domain name to display a list of hyperlinks, most of which advertise competing
weather informational and advisory services.
Respondent presumably receives click-through fees for each redirected
Internet user that clicks one of these links.
Thus, the Panel finds that Respondent’s use of the <www-wunderground.com> domain name
constitutes neither a bona fide
offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA
520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s
use of the <expediate.com> domain name to redirect Internet users to a
website featuring links to travel services that competed with the complainant
was not a bona fide offering of goods or services pursuant to Policy ¶
4(c)(i) or a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii)); see also
Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent
was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate
noncommercial or fair use by redirecting Internet users to a commercial search
engine website with links to multiple websites that may be of interest to the
complainant’s customers and presumably earning “click-through fees” in the
process).
As mentioned earlier, Respondent’s use of the <www-wunderground.com> domain name constitutes typosquatting since Respondent is attempting to profit from a common typographical error made by Internet users. This further evidences Respondent’s lack of rights and legitimate interests in the <www-wunderground.com> domain name pursuant to Policy ¶ 4(a)(ii). 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 the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the respondent used the typosquatted <wwwdewalt.com> domain name to divert Internet users to a search engine webpage, and failed to respond to the complaint).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent has been ordered by UDRP panels on several prior
occasions to transfer disputed domain names that infringed upon the rights of
others to the respective complainants. See, e.g., TB Proprietary Corp. v. Click Cons. Ltd.,
FA 858828 (Nat. Arb. Forum Jan. 19, 2007); see also Enter. Rent-A-Car Co. v. Click Cons. Ltd., FA 869453 (Nat. Arb. Forum Jan.
25, 2007); see also Publix Asset Mgmt.
Co. v. Click Cons. Ltd., FA 874479 (Nat. Arb. Forum Feb. 13, 2007). The Panel finds this to be evidence of
Respondent’s pattern of registering disputed domain names in bad faith in
violation of Policy ¶ 4(b)(ii). See Nat’l Abortion Fed’n v. Dom 4
Sale, Inc., FA 170643 (Nat. Arb. Forum
Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the
domain name prevented the complainant from reflecting its mark in a domain name
and the respondent had several adverse decisions against it in previous UDRP
proceedings, which established a pattern of cybersquatting); see also Stevens v. Modern
Ltd.-Cayman Web Dev., FA 250005 (Nat. Arb. Forum May 17, 2004) (“Registration and use of a domain name to prevent
Complainant from reflecting its mark in a corresponding domain name through a
pattern of such conduct evidences bad faith registration and use of a domain
name pursuant to Policy 4(b)(ii).”).
The website that resolves from the <www-wunderground.com> domain name
displays a list of hyperlinks, many of which advertise competing weather
informational and advisory services. This
use is likely to disrupt Complainant’s business by diverting customers to the
websites of Complainant’s competitors.
Therefore, the Panel finds that Respondent’s registration and use of the
<www-wunderground.com>
domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iii). See David
Hall Rare Coins v.
Respondent’s use of the <www-wunderground.com>
domain name is also likely to confuse Internet users as to the source,
sponsorship, affiliation, or endorsement of the competing weather informational
and advisory services advertised on the website that resolves from the disputed
domain name. Respondent presumably
receives click-through fees for each redirected Internet user, and is therefore
attempting to profit off the goodwill associated with Complainant’s
WUNDERGROUND.COM mark. Therefore, the
Panel finds that Respondent registered and is using the <www-wunderground.com> domain name in
bad faith pursuant to Policy ¶ 4(b)(iv). See Asbury
Auto. Group, Inc. v.
Finally, Respondent’s typosquatted <www-wunderground.com> domain name also evidences bad faith registration and use in and of itself pursuant to Policy ¶ 4(a)(iii). See Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“In typosquatting cases, such as this one, it would be difficult for Respondent to prove to the Panel that it did not have actual knowledge of Complainant’s distinctive MEDLINE mark when it registered the infringing [<wwwmedline.com>] domain name.”); see also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] 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 finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <www-wunderground.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: April 2, 2008
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