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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Stylin’ Concepts, Inc. v. Wilcot Wambanu

Case No. D2003-0183

 

1. The Parties

The Complainant is Stylin’ Concepts, Inc., Independence, Ohio, of United States of America, represented by Baker & Hostetler, LLP of United States of America.

The Respondent is Wilcot Wambanu, Bangkok, Bangrak, of Thailand.

 

2. The Domain Name and Registrar

The disputed domain name <wwwstylinconcepts.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 5, 2003. On March 5, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name(s) at issue. On March 6, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 11, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 1, 2003.

The Center appointed Madeleine De Cock Buning as the sole panelist in this matter on April 17, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

The following information is derived from the Complaint and supporting evidence submitted by the Complainant.

Complainant sells automotive accessories on the Internet under its mark STYLIN CONCEPTS. Stylin' Concepts began its business in the late 1980s. Since that time, Stylin’ Concepts has become recognized as the world leader in Truck Accessories, with an operations center and retail location, eight mail order catalogs, and two websites located at "www.stylinconcepts.com" and "www.stylincompacts.com". These websites permit online shopping by consumers from every where in the world.

Apart from this extensive use of its mark, the Complainant has also registered four United Sates trademarks: 1) STYLIN CONCEPTS (U.S. Reg. No. 1,968,299) in Class 42 for "mail order and retail store services for automotive accessories;" (2) STYLIN CONCEPTS (U.S. Reg. No. 2,686,506) in Class 35 for "mail order and retail store services featuring automotive parts and accessories; computerized online retail services in the field of automotive parts and accessories"; (3) STYLINCOMPACTS (U.S. Reg. No. 2,686,284) in Class 35 for "mail order and retail store services featuring automotive parts and accessories; computerized online retail services in the field of automotive parts and accessories"; and (4) STYLINCONCEPTS.COM MOTORING ACCESSORIES DIRECT (U.S. Reg. No. 2,690,627) in Class 35 for "mail order and retail store services featuring automotive parts and accessories.

The disputed domain name was registered on October 1, 2002. The Respondent's website consists of numerous hyperlinks in several categories. At Respondent's website, several pop-up advertisements appear either upon arriving at the website or upon leaving it. The portal webpage itself and one of the pop-up screens contain links to websites that sell automotive accessories online (e.g. "www.TruckAddOns.com"). The <wwwstylinconcepts.com> website content does not appear to include the word STYLIN CONCEPTS.

The Complainant sent two letters regarding this matter to the Respondent by postal mail and email. The letters asserted the Complainant’s rights in the STYLIN CONCEPTS trademark and demanded that the Respondent transfer the disputed domain name to the Complainant. The Complainant did not receive a response from the Respondent to either communication.

The Respondent has not filed any response to the Complaint or answered the Complainant’s factual assertions or evidence in any other manner.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends as follows:

(i) The Complainant is the owner of the STYLIN CONCEPTS trademark in the United States, and the disputed domain name is confusingly similar to the Complainant’s mark because the Respondent’s Domain Name incorporates the Complainant’s entire STYLIN CONCEPTS mark and merely adds the prefix "WWW." This addition of ‘www’ to the beginning of the domain name does not create a material difference from the Complainant's trademark since ‘www’ is generally recognized as a functional prefix which signifies that a world wide web domain name follows.

(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name.

(iii) The Respondent registered and is using the disputed domain name in bad faith essentially because:

(1) Respondent utilizes its confusingly similar domain name to divert unsuspecting Internet users to its website. This "typo-squatting" is an attempt to take advantage of typographical errors by Internet users attempting to access the Complainant’s <stylinconcepts.com> website and divert such users to competing websites, either through advertisements, commissions or the inclusion of links to businesses desiring to market their products. In doing so, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark and corresponding goods;

(2) Respondent’s use of links on its website to other websites operated by Complainant’s direct competitors is evidence of bad faith registration and use of the domain name for the purpose of disrupting the business of a competitor under the Policy;

(3) The Respondent had actual and constructive notice under United States trademark law regarding the Complainant’s registered mark;

(4) The Complainant has not responded and consented to the Respondent’s registration or use of the disputed domain name;

B. Respondent

As previously indicated, the Respondent has not filed any response to the Complaint and has not answered the Complainant’s contentions in any other manner.

 

6. Discussion and Findings

The Respondent was given notice of this proceeding in accordance with the Rules. The Center discharged its responsibility under Rules paragraph 2(a) to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint.

However, as previously indicated, the Respondent failed to file any reply to the Complaint and has not sought to answer the Complainant’s assertions, evidence or contentions in any other manner. The Panel finds that the Respondent has been given a fair opportunity to present its case, and the Panel will proceed to a decision on the Complaint.

The Respondent’s default does not automatically result in a decision in favor of the Complainant. The Complainant must still prove the elements required by Policy paragraph 4(a). In accordance with Paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the Domain Name, the Complainant must prove that each of the three following elements are satisfied:

1. The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section 6.A);

2. The Respondent has no rights or legitimate interests in respect of the Domain Name (see below, section 6.B); and

3. The Domain Name has been registered and is being used in bad faith (see below, section 6.C).

Pursuant to Paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with Paragraph 14(b) of the Rules, the Panel may draw such inferences as it considers appropriate from the Respondent’s failure to reply to the Complainant’s assertions and evidence or to otherwise contest the Complaint. In the circumstances, the Panel’s decision is based upon the Complainant’s assertions and evidence and inferences drawn from the Respondent’s failure to reply.

A. Identical or Confusingly Similar

The Complainant is the owner of the STYLIN CONCEPTS trademark used for its mail order and (computerized online) retail store services for automotive parts and accessories, and registered in the trademark Register of the US PTO. The Respondent has not filed any reply to the Complaint or contested the Complainant’s assertions. In the circumstances, the Panel finds that the Complainant has rights in the STYLIN CONCEPTS trademark.

The Policy requires that the disputed domain name be "identical or confusingly similar" to the Complainant’s STYLIN CONCEPTS trademark.

The Respondent’s Domain Name incorporates the Complainants’ entire STYLIN CONCEPTS mark with the mere addition of the prefix "www". In registering the disputed domain name Respondent introduced a small typographical change, the omission of the period (.) between Complainants’ STYLIN CONCEPTS mark and the common prefix "www" (See e.g. Dow Jones & Co., Inc. v. Powerclick, Inc., WIPO Case No. D2000-1259 (December 11, 2000); World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, WIPO Case No. D2000-0256 (June 9, 2000); Reuters Limited v. Global Net 2000 Inc., D2000-0441 (July 20, 2000)).

In the circumstances, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s STYLIN CONCEPTS trademark. Accordingly, the Panel finds that the Complainant has satisfied the first element required by the Policy.

B. Rights or Legitimate Interests

Even though the Respondent has not filed any reply to the Complaint and has not contested the Complainant’s assertions, it is upon the Panel to consider whether the Respondent’s use of the disputed domain name demonstrates rights or legitimate interests in the domain name. According to Policy paragraph 4(c), the following circumstances, if proved, demonstrate a registrant’s rights or legitimate interests in a domain name:

(i) the registrant used or demonstrably prepared to use the domain name or a corresponding name in connection with a bona fide offering of goods or services prior to notice of the dispute;

(ii) the registrant (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired trademark rights; or

(iii) the registrant is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant’s mark.

To satisfy the requirements of Policy paragraph 4(c)(i), the Respondent’s use of the disputed domain name must be in connection with a "bona fide" offering of goods or services. In the circumstances of this case the Respondent’s use of the disputed domain name is not "bona fide" within the meaning of Policy paragraph 4(c)(i) because:

(1) there is no apparent legitimate justification for the Respondent’s registration and use of the disputed domain name that is confusingly similar to the Complainant’s trademark and its <stylinconcepts.com> domain name for its website;

(2) Respondent's interest in the domain name appears to be in its value as a typographical error of Complainant’s web site.

In addition, the Panel draws an adverse inference from the Respondent’s failure to provide any explanation or rationale for its use of the disputed domain name for its website.

Policy paragraph 4(c)(ii) is not applicable. The Respondent does not contend, and there is no evidence that, the Respondent has been commonly known by the disputed domain name or that the disputed domain name is derived from one of Respondent’s trademarks or trade names.

Policy paragraph 4(c)(iii) is not applicable. The Respondent is using the domain name for a portal webpage with commercial links and pop-up advertisements.

For these reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Policy paragraph 4(a)(iii) requires the Complainant to prove that the Respondent registered and has used the disputed domain name in bad faith. The language of Policy paragraph 4(a)(iii) requires that both bad faith registration and bad faith use be proved.

Policy paragraph 4(b) provides that the following circumstances are deemed to be evidence that a registrant has registered and used a domain name in bad faith:

(i) circumstances indicating that the registrant has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or

(ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or

(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to its Website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of its Website or location or of a product or service on its Website or location.

The Complainant does not rely on Policy paragraphs 4(b)(i), 4(b)(ii) or 4(b)(iii) but relies upon Policy paragraph 4(b)(iv), which requires the Complainant to establish that the Respondent registered and is using the disputed domain name in order to confuse and divert Internet traffic to its website for commercial gain.

The Panel finds that the Respondent apparently knew of the Complainant’s STYLIN CONCEPTS trademark and registered and is using the disputed domain name in order to confuse and divert Internet traffic to the Respondent’s website, based upon the following circumstances:

(1) the Complainant’s STYLIN CONCEPTS trademark is well known, especially in the relevant market of mail order and (computerized online) retail store services for automotive accessories. Respondent knows the relevant market and therefore most likely the STYLIN CONCEPTS trademark since the portal webpage of Respondent under the disputed domain name contains links to websites that sell automotive accessories online by direct competitors of the Complainant;

(2) there is no apparent connection or relationship between the disputed domain name and the Respondent or its website or its content;

(3) there is no other apparent legitimate justification for the Respondent’s registration and use of the disputed domain name for its website;

(4) the Respondent has not denied any knowledge of the Complainant or its trademark; and

(5) the disputed domain name is a confusingly similar misspelling of the Complainant’s <stylinconcepts.com> domain name.

In addition, the Panel draws an adverse inference from the Respondent’s failure to provide any explanation or rationale for its use of the disputed domain name for its website.

The Panel also finds that the Respondent’s website results in commercial gain to the Respondent. It is well known that many websites generate revenue from click-through advertising, by directing traffic to other websites, and other online marketing techniques. In the absence of any reply by the Respondent, the Panel finds that the Respondent’s website generates revenue for the Respondent in that manner.

The Respondent’s registration and use of the disputed domain name is a form of bad faith domain name registration and use known as "typosquatting" – the registration of domain names that are identical to popular website domain names except for slight differences that may occur as a result of common keyboarding or spelling errors in order to misdirect Internet users.

Accordingly, the Panel finds that the Complainant has established that the Respondent registered and is using the disputed domain name in bad faith pursuant to Policy paragraph 4(b)(iv).

The Complainant also relies upon other grounds, not specifically enumerated in Policy section 4(b), for contending that the Respondent has registered and is using the disputed domain name in bad faith. Given the Panel’s determination based upon one of the grounds enumerated in Policy paragraph 4(b), it is not necessary for the Panel to determine whether these additional grounds are a basis for a finding of bad faith domain name registration and use.

 

7. 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 name, <wwwstylinconcepts.com> be transferred to the Complainant.

 

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Madeleine De Cock Buning
Sole Panelist

Dated: May 1, 2003