Meade Instruments Corp. v. Drop One -
Buy/Sell/Lease and Snapping Services c/o Nick M.
Claim Number: FA0502000423017
PARTIES
Complainant
is Meade Instruments Corp. (“Complainant”),
represented by Peter R. Afrasiabi, of Turner Green Afrasiabi & Arledge LLP, 535 Anton Blvd., Suite 850, Costa Mesa, CA 92626. Respondent is Drop One - Buy/Sell/Lease and Snapping Services c/o Nick M. (“Respondent”), P.O. Box 457, Dubai, 100001 AE.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <wwwmeade.com>,
registered with Atcom Technology LLC.
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.
The
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on February
17, 2005; the National Arbitration Forum received a hard copy of the Complaint
on February 22, 2005.
On
February 22, 2005, Atcom Technology LLC confirmed by e-mail to the National
Arbitration Forum that the domain name <wwwmeade.com>
is registered with Atcom Technology LLC and that the Respondent is the current
registrant of the name. Atcom
Technology LLC has verified that Respondent is bound by the Atcom Technology
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 28, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of March 21, 2005 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@wwwmeade.com by e-mail.
Respondent submitted its Response in electronic form
on March 21, 2005. UDRP Rule 5(b)
states, “The response shall
be submitted in hard copy and (except to the extent not available for annexes)
in electronic form . . . .” In
addition, Rules 5(b)(i)-(ix) mandate further information to be included in
responses including, among other things, a signed certification that the
information included in a response is complete and accurate.
Respondent
has failed to provide a hard copy of its Response, to certify the Response, and
to address other mandates provided for under Rule 5(b). In its discretion, the Panel accepts the
Response, despite its noncompliance with the UDRP Rules.
On
March 25, 2005, Complainant timely submitted an Additional Submission.
On March 30, 2005, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant makes the following assertions:
1. Respondent’s <wwwmeade.com> domain name is identical to Complainant’s
MEADE mark.
2. Respondent does not have any rights or
legitimate interests in the <wwwmeade.com>domain name.
3. Respondent registered and used the <wwwmeade.com> domain name in bad
faith.
B.
Respondent
Respondent says that he has never asked for any money from
Complainant for the domain name. Nor
has he diverted the domain to any site or page which is detrimental to
Complainant’s interests for personal gains.
C. Complainant’s Additional Submission
Complainant challenges the relevancy of Respondent’s
Response.
FINDINGS
Complainant, Meade Instruments Corp., has
two registrations of the MEADE mark with the United States Patent and Trademark
Office, registration numbers 1,156,176 (issued June 2, 1981 in connection with
“Telescopes, Telescope Parts”) and 2,082,786 (issued July 29, 1997 in
connection with “scientific and optical apparatus and instruments, namely,
telescopes; eye pieces, view finders, lenses, prisms, filters, polarizers,
mirrors, tripods, mounts and balance weights all for telescopes,” among other
things).
Respondent registered the <wwwmeade.com>
domain name on May 17, 2004.
Respondent’s website resolved to a website that offered links to
companies that sell telescopes.
Subsequent to the filing of this proceeding, Respondent changed his
website to resolve to an Internet mall directory.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (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.”
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;
(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.
Complainant
bases its rights in the MEADE mark on its two registrations of the mark with
the United States Patent and Trademark Office.
Complainant’s registration of the MEADE mark with a government trademark
authority establishes a presumption of valid and subsisting trademark rights in
the mark pursuant to Policy Paragraph 4(a)(i). See Am.
Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful
trademark registration with the United States Patent and Trademark Office
creates a presumption of rights in a mark); see also Janus Int’l
Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which
creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this
assumption).
The
disputed domain name, <wwwmeade.com>, is confusingly
similar to Complainant’s MEADE mark 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.”
Bank of Am. Corp. v. InterMos,
FA 95092 (Nat. Arb. Forum Aug. 1, 2000); see also Marie Claire Album v.
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); see also Neiman Marcus Group, Inc. v.
S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity
has been established because the prefix "www" does not sufficiently
differentiate the <wwwneimanmarcus.com> domain name from Complainant's
NEIMAN-MARCUS mark); see also Dana Corp. v. $$$ This Domain Name Is For Sale
$$$, FA 117328 (Nat. Arb. Forum Nov. 19, 2002) (finding Respondent's
<wwwdana.com> domain name confusingly similar to Complainant's registered
DANA mark because Complainant's mark remains the dominant feature).
Respondent has used the <wwwmeade.com>
domain name to re-direct Internet users who are searching for Complainant’s
website to another website that offers links to telescopes, which are the same
products that Complainant sells under its MEADE mark. Respondent’s use of the domain name is neither a bona fide
offering of goods or services, nor a legitimate noncommercial or fair use
pursuant to Policy Paragraphs 4(c)(i) and (iii). See Computerized Sec. Sys.,
Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that
Respondent’s appropriation of Complainant’s mark to market products that
compete with Complainant’s goods does not constitute a bona fide
offering of goods and services); see also
Coryn Group, Inc. v. Media Insight, FA
198959 (Nat. Arb. Forum Dec. 5, 2003) (finding
that respondent was not using domain names for a bona fide offering of
goods or services nor a legitimate noncommercial or fair use because respondent
used the names to divert Internet users to a website that offered competing
services with those offered by the complainant under its marks); see also Glaxo
Group Ltd. v. Glenmore, FA 203164 (Nat. Arb. Forum Dec. 1, 2003)
(finding that respondent was not
using the domain name in connection with a bona fide offering of goods
or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use of the trademark pursuant to Policy ¶ 4(c)(iii) because respondent used the
domain name to take advantage
of Complainant's mark by diverting Internet users to a competing commercial
site); see also C & E Fein GmbH & Co. v. Mierendorff, FA
183729 (Nat. Arb. Forum Oct. 1, 2003) (“Relevant law states that no legitimate or bona fide use or
interest in the domain name can be found when a respondent, who is selling
competing goods and services, is diverting consumers to its own web site by
using a complainant's trademark in its domain name.”).
Also, Respondent is not commonly known by “wwwmeade” or
“wwwmeade.com” pursuant to Policy Paragraph 4(c)(ii). The WHOIS information does not show that Respondent is commonly
known by the disputed domain name. See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10,
2003) (finding that the WHOIS information, and its failure to imply that
Respondent is commonly known by the disputed domain name, is a factor in
determining that Policy ¶ 4(c)(ii) does not apply); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA
173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that, without demonstrable evidence to support the notion
that a respondent is commonly known by a domain name, the notion must be
rejected).
Respondent
is engaged in the practice of typosquatting in violation of Policy Paragraph
4(a)(iii). See 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.”); see also Canadian Tire Corp., Ltd. v. domain adm’r
no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003)
(holding that an “absence of a dot between ‘www’ and ‘canadiantire.com’ [in the <wwwcanadiantire.com> domain
name is] likely to confuse Internet users [and] encourage them to access
Respondent’s site” and evidenced bad faith registration and use of the domain
name); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718
(Nat. Arb. Forum Feb. 6,
2003) (“[I]n 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.”).
Respondent
has used the disputed domain name to resolve to a website that offers goods
that compete with those offered by Complainant under its MEADE mark; therefore,
Respondent registered the domain name primarily for the purpose of disrupting
the business of a competitor, which is evidence of bad faith pursuant to Policy
Paragraph 4(b)(iii). See S. Exposure v.
S. 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); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385
(Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from
Complainant's marks suggests that Respondent, Complainant’s competitor,
registered the names primarily for the purpose of disrupting Complainant's
business); see also Puckett v.
Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has
diverted business from Complainant to a competitor’s website in violation of
Policy ¶ 4(b)(iii)).
Also,
Respondent registered and used the disputed domain name in bad faith pursuant
to Policy Paragraph 4(b)(iv).
Respondent has intentionally attempted to attract Internet users to its
commercial website by creating a likelihood of confusion with Complainant’s
mark. See Am. Online, Inc. v.
Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad
faith where Respondent registered and used an infringing domain name to attract
users to a website sponsored by Respondent); see also Drs. Foster & Smith, Inc. v. Lalli,
FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent
directed Internet users seeking Complainant’s site to its own website for
commercial gain).
DECISION
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwmeade.com>
domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr.
(Ret.), Panelist
Dated: April 12, 2005
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