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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

A.G. Edwards & Sons Inc. v. Services LLC

Case No. D2006-1651

 

1. The Parties

The Complainant is A.G. Edwards & Sons Inc., St. Louis, Missouri, United States of America, represented by Blackwell Sanders Peper Martin, United States of America.

The Respondent is Services LLC, Roseau, Dominica.

 

2. The Domain Name and Registrar

The disputed domain name <agewards.com> is registered with Moniker Online Services, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 28, 2006. On December 29, 2006, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On January 29, 2007, Moniker Online Services, LLC transmitted by email to the Center its verification response indicating that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on February 7, 2007. The Center verified that the Complaint together with the amendment to 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 February 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 13, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 14, 2007.

The Center appointed Adam Samuel as the sole panelist in this matter on March 20, 2007. 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 Complainant is a national full service brokerage in the United States of America and a member of the New York Stock Exchange. It owns trademark registrations in a number of different countries for A G EDWARDS, notably in Australia dated February 21, 2005, Canada dated January 4, 2006, United States of America dated October 4, 2005. It also owns a registered trademark for the name A.G. EDWARDS & SONS, Inc in the United Kingdom, dated May 10, 2002.

 

5. Parties’ Contentions

A. Complainant

The Complainant owns a family of service marks relating to its financial services in the United States of America and other countries with the name A.G. Edwards. It has continuously used this name as a mark to identify its services in the United States of America since early 1975. It also uses its marks online in connection with the website located at “www.agedwards.com”.

The phrase “agewards” is visually similar to the AG EDWARDS marks. The only difference is the exclusion of the letter “d”. The Respondent has no rights to the name “agewards” or AGEDWARDS and is not commonly known by the domain name in issue. The Respondent has no legitimate claim to any trademark or service mark rights to the domain name <agewards.com> or the phrase “agewards”.

The Respondent is acting with the intent to misleadingly divert consumers or others looking for goods and/or services identified by the AGEWARDS marks for the Respondent’s own commercial gain.

The site contains only a “link farm” containing “Sponsored Links” that link to websites of financial service provider companies that are direct competitors of the Complainant. “Typosquatting” constitutes evidence of bad faith as does the Respondent’s failure to respond to the Complainant’s letter sent on September 7, 2006.

B. Respondent

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

 

6. Discussion and Findings

Under the Policy, the Complainant must prove that:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which it has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The domain name in issue is the same as that of a trademark which the Complainant has registered in a number of different countries. The only difference is the removal of two full stops between the first two letters and the deletion of the letter ‘d’. While “Edwards” is a common English-language surname, “Ewards” is not. This appears to be a classic example of “typo-squatting”, where a domain name attracts Internet users who make a small typing error to another website. Either way, the two names are sufficiently similar and the way in which “Ewards” is not a known name unlike “Edwards” that this domain name is confusingly similar to the Complainant’s trademark AG EDWARDS.

In Sierra HealthStyles LLC v. Modern Limited - Cayman Web Development, WIPO Case No. D2006-0020, concerning the disputed domain name <mirival.com> and the Complainant’s trademark MIRIVAL, the Panel said on this subject:

“Here, the domain name has two differences from Registration No. 2152729 and the key element of the other two registrations: the addition of the .com suffix and the substitution of “i” for the first “a” in the trademark.

The substitution of the “i” for the first “a” is visually apparent on close inspection. The domain name and the trademark, MIRAVAL, however, are phonetically similar. There are various ways that both versions of the word may be pronounced and some of these will or may sound the same or similar. The word element of the domain name created by the substitution of the “i” for the “a” is not a plain English word or otherwise generic. There are likely to be circumstances where a person might unintentionally type in the domain name instead of the trademark term, particularly having regard to imperfect recollection and the potential for persons using the Internet to “guess” at domain names. In these circumstances a finding of confusing similarity in line with the “typosquatting” cases is appropriate. See e.g. AltaVista Company v. Saeid Yomtobian, WIPO Case No. D2000-0937; America Online, Inc. v. Johuathan Investments, Inc. and AOLLNEWS.COM, WIPO Case No. D2001-0918; and Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775.

Consequently, the Panel finds that the disputed domain name is at least confusingly similar to the Complainant’s registered trademark rights.”

For the same reasons, the Panel concludes here that the domain name is confusingly similar to the Complainant’s registered trademark.

B. Rights or Legitimate Interests

The Respondent is not called “agewards” or anything similar and does not appear to trade under that name. There is no evidence that the Complainant, has authorized the Respondent to use any of its trademarks. The Respondent has never asserted any rights or legitimate interests in the name. For these reasons, on the basis of the evidence in case file, and in view of the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the domain name.

C. Registered and Used in Bad Faith

Currently, the disputed domain name resolves to a website that offers links to websites marketing products and services that compete with the Complainant’s products. The domain name involves a marginal misspelling of the Complainant’s name. The reasonable inference to draw from this is that the Respondent is seeking to attract to its website customers who mis-type the Complainant’s name and in particular, its website address which is identical to the domain name in issue except for the letter “d”.

The only explanation of what has happened is that the Respondent’s motive in registering and using the sites seems to be, as the Complainant says, simply to disrupt the Complainant’s relationship with its customers or potential customers or attempt to attract Internet users for potential gain. These both constitute evidence of registration and use in bad faith: paragraph 4(b)(iii) & (iv) of the Policy.

This conclusion is supported by the view expressed in Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568:

“Typosquatting is virtually per se registration and use in bad faith. It is difficult to conceive of circumstances that would overcome the inference that the typosquatter “intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s website by creating a likelihood of confusion with the complainant’s mark as to the source” of the website. Here such conduct was undertaken to send Complainant’s customers to a site that promoted directly competing services.”

The fact that the Respondent is using the domain name in issue to divert customers to competitors of the Complainant is further evidence of bad faith.

The panel in Banca di Roma S.p.A. v. Unasi Inc. a/k/a Domaincar, WIPO Case No. D2006-0068, among others, agreed that this type of behaviour constituted bad faith. It said:

“The Respondent is linking the disputed domain name to a portal site offering sponsored links. There, Internet users have access to a variety of goods and services, among them websites of the Complainant’s competitors. As described by the panelist in Deloitte Touche Tohmatsu v. Henry Chan, WIPO Case No. D2003-0584, such websites offer a revenue program which pays domain name owners (in the particular case) “50% of all revenues generated from searches, popunders, popups, and exit popups” in respect of users directed to its website through the participants domain name.

“This leads the Panel to the conclusion that the Respondent registered the domain name at issue to divert Internet users seeking information about the Complainant’s products to a portal site offering sponsored links and to share in revenues obtained from the diverted traffic. Even if Internet users would realize that the Respondent’s website is not connected with the trademark owner, the Respondent is liable to profit from their initial confusion, since they may still be tempted to click on sponsored links. In many previous UDRP decisions, in some of them the Respondent was involved as a respondent party as well, such exploitation of trademarks to obtain click-through commissions from the diversion of Internet users was held of use in bad faith … In the absence of any reply of the Respondent, the Panel can make a reasonable inference that the Respondent’s website generates revenue for the Respondent in that manner.”

For all these reasons, the Panel concludes that the Respondent has both registered and used the domain name in issue in bad faith.

 

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

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Adam Samuel
Sole Panelist

Dated: April 3, 2007