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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
PHE, Inc. v. Bill McCall
Case No. D2003-0516
1. The Parties
The Complainant is PHE, Inc., C/O John L. Myers, Hillsborough, North Carolina, United States of America, represented by Foley Hoag, LLP, United States of America.
The Respondent is Bill McCall, Crofton, Maryland, United States of America.
2. The Domain Name and Registrar
The disputed domain name, <adamevecom.com>, is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 28, 2003. On July 2, 2003, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On July 2, 2003, Go Daddy Software 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 July 8, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was July 28, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 31, 2003.
The Center appointed Sandra Franklin as the sole panelist in this matter on August 7, 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
Complainant is the owner of numerous registered trademarks for ADAMEVE.COM and ADAM & EVE and variants thereof, as well as numerous related domain names, with first use dating back to 1971. The registrations are in several classes but generally cover the sale of goods of a sexual nature.
5. Parties’ Contentions
A. Complainant
Complainant makes the following assertions:
1. Respondent’s <adamevecom.com> domain name is confusingly similar to Complainant’s marks.
2. Respondent does not have any rights or legitimate interests in the <adamevecom.com> domain name.
3. Respondent registered and used the <adamevecom.com> domain name in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
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.
A. Identical or Confusingly Similar
Complainant
has clearly
established
rights in
the marks
ADAMEVE.COM
and ADAM&EVE
via evidence
of many
long-standing
registered
trademarks
and domain
names. Complainant
also states
that it
has spent
millions
in marketing
worldwide,
and has
multi-millions
in worldwide
sales under
its marks.
Respondent’s
domain name
<adamevecom.com>
is virtually
identical
to Complainant’s
mark but
for the
repetition
of the top-level
domain name
".com".
This is
classic
"typo-squatting",
capitalizing
on user
error when
seeking
a well-known
site. This
type of
cybersquatting
has been
declared
confusingly
similar
many times
in previous
National
Arbitration
Forum cases,
as well
as previous
WIPO cases.
Indeed,
this precedent
has already
been cited
against
the Respondent
herein in
another
case, Bank
of America
Corporation
v. Bill
McCall,
National
Arbitration
Forum Case
No. FA0211000135012,
wherein
Respondent
had registered
the domain
<www.bankofamericacom.com>.
See also
Microsoft
Corporation
v. Global
Net 2000,
Inc,
WIPO
Case No.
D2000-0554,
declaring
<hotmailcom.com>
to be identical
to Complainant’s
HOTMAIL
mark.
Accordingly, the Panel finds that the domain name <adamevecom.com> is confusingly similar to Complainant’s marks and Policy paragraph 4(a)(i) has been satisfied.
B. Rights or Legitimate Interests
Respondent
did not
submit a
Response
to the Panel
in this
proceeding.
Since Respondent
has not
provided
any circumstances
showing
that it
had rights
or legitimate
interests
in the disputed
domain names,
the Panel
will accept
as true
all allegations
and inferences
as set forth
by Complainant
in the Complaint.
See G.D.
Searle v.
Martin Mktg,
National
Arbitration
Forum Case
No. FA 118277,
holding
that where
Complainant
has asserted
that Respondent
has no rights
or legitimate
interests
with respect
to the domain
name it
is incumbent
on Respondent
to come
forward
with concrete
evidence
rebutting
this assertion
because
this information
is "uniquely
within the
knowledge
and control
of the respondent".
See also
America
Online,
Inc. v.
AOL International,
WIPO
Case No.
D2000-0654,
finding
no rights
or legitimate
interests
where Respondents
failed to
respond.
The WHOIS contact information does not indicate that Respondent is commonly known by <adamevecom.com>; therefore Policy ¶ 4(c)(ii) does not apply to Respondent.
Respondent
has used
the domain
name <adamevecom.com>
to redirect
traffic
to a "www.deepthroatsex.com"
site. Numerous
UDRP Panels
have held
that such
use of a
domain to
redirect
traffic
as a result
of typographical
error does
not create
legitimate
rights to
a domain.
See, for
example,
e-Duction,
Inc. v.
John Zuccarini,
d/b/a The
Cupcake
Party &
Cupcake
Movies,
WIPO
Case No.
D2000-1369.
Respondent
is not using
the disputed
domain name
in connection
with a bona
fide offering
of goods
or services
or for a
legitimate
noncommercial
or fair
use. In
fact, Respondent
was purposely
capitalizing
on the trade
value of
Complainant’s
well-established
and heavily
marketed
trademarks
to sell
competing
goods. See
Peter
Frampton
v. Frampton
Enterprises,
Inc.,
WIPO
Case No.
D2002-0141,
which held
that the
use of a
domain name
which incorporates
a registered
mark in
order to
sell products
in the same
class as
mark holder
inherently
and intentionally
seeks to
exploit
user confusion,
and therefore
cannot constitute
bona fide
use. Respondent
may not
be offering
goods of
any kind
at present,
as Complainant
states that
after it
sent a cease
and desist
letter,
only a "Forbidden"
notice was
posted at
"www.adamevecom.com".
The Panel finds that Policy ¶ 4(c)(i) and Policy ¶ (4)(c)(iii) do not apply to Respondent, and that Policy ¶ 4(a)(ii) has been satisfied.
C. Registered and Used in Bad Faith
The Panel
again notes
Bank
of America
Corporation
v. Bill
McCall,
National
Arbitration
Forum Case
No. FA0211000135012,
wherein
this same
Respondent
had registered
the domain
name <bankofamericacom.com>.
Respondent’s
demonstrated
propensity
to engage
in deliberate
typo-squatting
is an indication
of bad faith.
See Policy
paragraph
4(b)(ii)
and A.B.C.
Carpet Co.,
Inc. v.
Tom Boltz
and abccarpetandhome.org,
WIPO
Case No.
D2001-0531.
When Complainant sent a cease and desist letter, Respondent replied:
"I will cease and desist from redirecting adamevecom.com to deepthroatsex.com. If you want the domain name compensate me for it or bring it to arbitration."
Subsequent
offers to
compensate
Respondent
for its
out-of-pocket
costs went
unanswered.
In Respondent’s
reply above,
he acknowledges
illegitimate
use and
appears
quite aware
that he
is using
someone
else’s mark,
intending
to profit
from it
one way
or another.
Many Panels
have held
that demanding
compensation
greater
than registrant’s
out-of-pocket
costs associated
with registering
the domain
name is
prima
facie
evidence
of bad faith.
See Policy
paragraph
(4)(c),
and Trygg-Hansa
AB v. Arild
Rosenberg,
WIPO
Case No.
D2003-0171,
where the
Panel inferred
bad faith
"from
the Respondent’s
overall
behavior
and from
the fact
that he
turned down
without
further
negotiation
an offer
for compensation
of the costs
in exchange
for transfer
of the domain
name, which
he himself
originally
invited
to be made".
Further,
this Panel
infers that
Respondent,
being in
the same
business
as Complainant,
was well
aware of
Complainant’s
long-standing
well-known
marks in
that business
when it
selected
the infringing
and purposely
misleading
domain name
<adamevecom.com>.
See
Pfizer
Inc. v.
United Pharmacy
Ltd,
WIPO
Case No.
D2001-0446,
finding
constructive
knowledge
of Complainant’s
marks "as
a trademark
search on
the date
of registration
of the Domain
Names would
have revealed
Complainant’s
trademark
registrations
in the United
States".
See also
Young
Genius Software
AB v. MWD,
James Vargas,
WIPO
Case No.
D2000-0591,
holding
that the
representation
of lack
of infringement
in the registration
agreement
imposes
a concomitant
duty to
verify.
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
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 <adamevecom.com> be transferred to the Complainant.
Sandra Franklin
Sole Panelist
Date: August 14, 2003