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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sidestep, Inc. v. Digi Real Estate Foundation

Case No. D2007-0550

 

1. The Parties

1.1 The Complainant is Sidestep, Inc. California, the United States of America represented by Rosemary S. Tarlton of Morrison & Foerster.

1.2 The Respondent is Digi Real Estate Foundation, Panama City, Panama.

2. The Domain Name and Registrar

2.1 The disputed domain name is <sidstep.com> which is registered with eNom.

3. Procedural History

3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2007. On the same day, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On the same day, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing contact details.

3.2 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 April 19, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 9, 2007. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on May 11, 2007.

3.4 The Center appointed Nick J. Gardner as the sole panelist in this matter on May 22, 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

4.1 The Complainant provides a website service at “www.sidestep.com” which offers a wide range of travel related goods and services, or links to such goods and services, and travel related information. The filed evidence establishes it is widely used and very successful, with over five million visitors a month. It also offers a “sidestep toolbar” as a separate software program. The Complainant owns a number of trademarks in various countries for the word “sidestep”, for example United States registration number 2646759.

4.2 The Domain Name was registered by the Respondent on March 17, 2005.

4.3 The Domain Name is used to host a site with links to a range of travel related products and services.

4.4 The Respondent has been subject to at least 10 previous UDRP decisions (WIPO Case Nos. D2006-0472, D2006-0651, D2006-0693, D2006-0667, D2006-0765, D2006-0748, D2006-1043, D2006-1047, D2006-1054, D2006-1112, D2006-1117, D2006-1260, D2006-1411 and D2006-1619).

5. Parties’ Contentions

5.1 Complainant

5.1.1 The Complainant in summary says that the Domain Name is similar to the Complainant’s well known name and is being used to earn revenue from internet users who make a typographical error in entering the Complainant’s name into a web browser. It says the Respondent has no rights in the domain name, which has been registered and used in bad faith. It also relies upon the previous registrations made by the Respondent, cited in the decisions referred to above, as establishing a pattern of bad faith registrations.

5.2 Respondent

5.2.1 The Respondent did not submit any response.

6. Discussion and Findings

6.1 Identical or Confusingly Similar

6.1.1 The Policy requires that the Respondent’s domain name is confusingly similar to a trademark in which the Complainant has rights. (Policy, paragraph 4(a)(i)). The Complainant has established it owns a number of registered trademarks in respect of “sidestep”. The domain name <sidstep.com> is clearly similar to these trademarks. The omission of a single “e” results in a word which has no natural meaning in English, but which visually appears similar to the word “sidestep” and which clearly could, as the Complainant suggests, be produced as result of typographical error when seeking to type the word “sidestep”. Accordingly the Panel finds the Domain Name is confusingly similar to a trademark in which the Complainant has rights.

6.2 Rights or Legitimate Interests

6.2.1 The Policy requires that the Respondent has no rights or legitimate interests in respect of the Domain Name (Policy, paragraph 4(a)(ii)). There is no evidence that the designation sidstep has any relationship to the Respondent or there is any reason that it has to adopt legitimately that term. In the absence of any natural meaning to the term and any Response from the Respondent and in view of the Panel’s finding further below, the Complainant has established that this element of the Policy applies.

63 Registered and Used in Bad Faith

6.3.1 The Policy requires that the Domain Name was registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).

6.3.2 Paragraph 4(b) of the Policy, provides a non exhaustive list of circumstances which provide evidence of bad faith, including:

“(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s 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 the respondent’s website or location or of a product or service on the site or location.”

6.3.3 It is quite clear that the Domain Name has been chosen because of its association with the Complainant – the use of the Domain Name to host a site containing travel related links clearly shows the Respondent is aware of, and making use of, the Complainant’s well known activity in this field. The intent is that users who make a typographical error find themselves at a site operated by the Respondent with travel links available. The Panel infers that the Respondent then earns “click through” advertising revenue as users follow such links to other, third party, sites. No doubt many users who make the typographical error will realize, when reaching the Respondent’s site, their error and re-enter the correct address. However a proportion neither will, nor even having realized their mistake will make use of the links the Respondent provides. The Panel concludes that this is either evidence of bad faith under paragraph 4(b)(iv) or, alternatively in so far as users are not confused, a more general form of bad faith, not expressly identified in the non exhaustive list of examples of bad faith under paragraph 4(b) of the Policy, namely the act of simply taking improper advantage of the Complainant’s goodwill in its name in order to divert business from the Complainant from users who, but for a typographical error, would have carried out business with the Complainant.

6.3.4 The Panel also notes, as have previous panels, that the Respondent is a “serial offender”, having been involved in several WIPO UDRP cases where it has registered domain names incorporating or based upon famous trademarks in which it does not have any legitimate rights and then sought to earn revenue out of them in the same manner as in the present case – the list of cases cited above by the Complainant provides details. Previous panelists have characterized the Respondent as operating a “typo squatting business”. The Panel agrees with the view expressed in WIPO Case No. D2006-0765 that “While bad conduct in the past is alone by no means a safe lead to conclude that there is bad faith of the Respondent in the current case, these previous cases clearly show that Respondent apparently does not conduct any legitimate business whatsoever and has as its sole purpose the registration of domain names in order to profit from the diversion of legitimate businesses of third parties”.

7. Decision

7.1 For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel finds that the Domain Name has been registered and used in bad faith and orders that the Domain Name <sidstep.com> be transferred to the Complainant.

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Nick J. Gardner
Sole Panelist

Dated: June 5, 2007