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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

American Automobile Association, Inc. v. Bladimir Boyiko and Andrew Michailov

Case No. D2006-0252

 

1. The Parties

The Complainant is American Automobile Association, Inc., Florida, United States of America, represented by Covington & Burling, United States of America.

The Respondents are Bladimir Boyiko, Moscow, Russian Federation and Andrew Michailov, Moscow, Russian Federation.

 

2. The Domain Name and Registrar

The disputed domain name <wwwaaa.com> (the “Domain Name”) is registered with eNom (“the Registrar”).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 28, 2006. On March 1, 2006, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response confirming that the First 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 13, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 2, 2006. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on April 5, 2006.

The Center appointed Tony Willoughby as the sole panelist in this matter on April 13, 2006. 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.

From the papers before the Panel it appears that the hardcopy communication to the First Respondent address given for him at the WHOIS databases have reached the First Respondent. The hardcopy communication to the Second Respondent, though has been returned. The Center has emailed the documents in the case to the Respondents at the email addresses which they provided on registration and there is no indication that any of those communications were not received. Further, the Complainant has produced email receipt notifications to show that its letters to the Respondents were received.

It is the responsibility of registrants to ensure that the contact information which they provide to their registrars on registration are up-to-date and sufficient to enable them to be contacted. The Panel is satisfied that both the Center and the Complainant have done everything possible to contact the Respondents and that the Respondents are properly served for the purpose of this administrative proceeding.

 

4. Factual Background

The Complainant is a not-for-profit, non-stock corporation organized and existing under the laws of the State of Connecticut. It is one of the world’s foremost automotive clubs, which was founded over 100 years ago. It claims to have over 47 million members. It is commonly known by the acronym ‘AAA’.

It is the proprietor of many domain names including <aaa.com> and operates a website at “www.aaa.com”. It is the proprietor of various US trade mark and service mark registrations, most of which are device marks featuring the letters ‘AAA’, but one of which is Registration Number 0829265 ‘AAA ‘ (typed drawing) dated October 22, 1965, in international classes 35, 36, 37, 39, 41 and 42 for various services rendered to owners of motor vehicles.

The Domain Name was first registered on October 31, 2000.

In or before August 2005, the Complainant discovered that the Second Respondent was the registrant of the Domain Name and that the Domain Name connected to a website redirecting Internet users to a webpage at “www.ownbox.com/treasure/auto.html” displaying content from “www.price-autos.com”. In the result, visitors to the site at “www.wwwaaa.com” found themselves at a site offering information services relating to car prices.

On August 18, 2005, the Complainant’s representatives wrote to the Second Respondent at the address appearing on the WHOIS database drawing his attention to the Complainant’s rights and seeking transfer or cancellation of the Domain Name. The letter was returned on the basis that it was insufficiently addressed. A follow-up letter was sent on October 6, 2005, to the same address and with the same result.

When the Complainant’s representatives conducted a GoDaddy.com WHOIS database search on November 22, 2005, they found that the Domain Name was registered with the Registrar in the name of the First Respondent. That day they wrote to the First Respondent at the address appearing on the Registrar’s WHOIS database in similar terms to their previous letters to the Second Respondent. Again, the address proved insufficient and the letter was returned.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is identical or confusingly similar to its AAA trade marks used and registered in the United States.

The Complainant further contends that the Respondents are one and the same or are closely associated and that neither of them has any rights or legitimate interests in respect of the Domain Name. The Complainant refers to the circumstances set out in paragraph 4(c) of the Policy and contends that none of them is applicable. The Complainant contends that while the Respondents are and have been using the Domain Name for a commercial offering of goods or services (i.e. the redirection of Internet users for commercial gain to sites competing with the Complainant), that offering cannot constitute a bona fide offering. The Complainant contends that such an offering, relying as it does on the deceit of Internet users and riding on the back of the Complainant’s reputation and goodwill associated with its well-known trade mark, is a mala fide offering.

For the same reasons the Complainant contends that the Respondents registered or acquired the Domain Name in bad faith and are using the Domain Name in bad faith. Additionally, the Complainant points to the insufficient addresses provided by both Respondents and contends that this was a deliberate bad faith device to render the Respondents uncontactable.

B. Respondents

The Respondents did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove that

(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondents have no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in bad faith.

Before moving into a consideration of the above, it is convenient to deal here with the status of the Second Respondent. The Complainant has produced to the Panel an impressive array of evidence to show that the Second Respondent, the previous registrant of the Domain Name, has a track record as a cybersquatter. He has been involved as a respondent in many previous complaints under the Policy and has been found on each occasion to be an abusive registrant within the meaning of paragraph 4(a) of the Policy. In several of those cases he was found to have transferred the domain names in issue to aliases of his. Additionally, the content at the website connected to the Domain Name is identical to that which was in place when the Domain Name was registered in the name of the Second Respondent.

While the Panel believes it likely that the First Respondent is an alter ego or associate of the Second Respondent, it is not necessary for the Panel to make any positive finding to that effect for the purpose of deciding this dispute. Henceforth all references to the Respondent are references to the First Respondent, the current registrant.

A. Identical or Confusingly Similar

The Domain Name comprises (a) the generic ‘www’ prefix (absent the dot), (b) the Complainant’s name, AAA, which is registered in various forms as a trade mark and service mark in the United States and (c) the generic ‘.com’ domain suffix.

The Panel finds that the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights.

B. Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant recites the circumstances set out in paragraph 4(c) of the Policy and contends on information and belief that none of them is applicable.

The Complainant’s operational website is to be found at “www.aaa.com”, a website which has been active at that address for over a decade. If one accidentally omits a dot and enters “wwwaaa.com” into the browser, one finds oneself at “www.ownbox.com/treasure/auto.html” the same car pricing webpage facing Internet visitors to “www.wwwaaa.com”.

It could be an unhappy coincidence that the Respondent’s website, connected as it is to a domain name so closely similar to the Complainant’s web address, is offering goods and services so closely associated with the activities of the Complainant. Alternatively it is a flagrant abuse of the system, an invasion of the Complainant’s trade mark rights and a deceit on Internet users.

The Complainant’s evidence all points to the latter. The Panel can think of no reason why the Respondent might reasonably be said to have rights or legitimate interests in respect of the Domain Name. The use that the Respondent is making of the Domain Name appears to be a commercial use, confusion of Internet users seems inevitable and there is nothing before the Panel to suggest that the Respondent or anybody associated with the Respondent is named or commonly known as ‘wwwaaa’ or anything similar.

Clearly, the Respondent has a case to answer. The evidence suggests that the emails from the Complainant and the Center and the hardcopy communication from the Center did get through to the Respondent. The Panel believes it very probable that the Respondent is well aware of the case against him, but has elected not to answer it.

Whether or not that is the case, in the absence of any explanation from the Respondent the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

C. Registered and Used in Bad Faith

For precisely the same reasons and in the absence of an explanation from the Respondent the Panel finds that the Respondent acquired the Domain Name with a view to using it for the same purpose that the previous owner (the Second Respondent) was using the Domain Name, namely to connect it directly or indirectly to a commercial website offering automobile services competing with the Complainant’s services. The Panel accepts the unchallenged assertion of the Complainant that in so using the Domain Name the Respondent is being paid click through revenue for the redirection of Internet users.

The website to which the Respondent’s site redirects Internet users is or appears to be designed for automobile owners/purchasers in the United States. Given the evident fame of the Complainant in the automobile fraternity in the United States, it seems inconceivable that the Respondent cannot have been aware of the Complainant and its trade mark. In any event, at the very least one would have expected a registrant of a ‘www’ pre-fixed domain name to have checked the website connected to a domain name comprising the remainder of the registrant’s domain name.

The Panel is in no doubt that from time to time Internet users intending to visit the Complainant’s website at “www.aaa.com” will fail to enter the first dot and will find themselves at the competing site referred to above, thereby providing a business opportunity for the competitor and revenue for the Respondent. While some visitors might appreciate that they have not reached a website of or associated with the Complainant, others will not. In the absence of any rational explanation the Panel concludes that this must have been the intended result.

Thus, the Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. By using the name as it is being used, the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website.

 

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, <wwwaaa.com>, be transferred to the Complainant.

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Tony Willoughby
Sole Panelist

Dated: April 27, 2006