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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Georgia Power Company, Alabama Power Company and The Southern Company v. Caribbean Online International Ltd

Case No. D2007-1032

 

1. The Parties

The Complainants are Georgia Power Company, Atlanta, Georgia, United States of America (“First Named Complainant”); Alabama Power Company, Birmingham, Alabama, United States of America (Second Named Complainant); The Southern Company, Atlanta, Georgia, United States of America, of United States of America,( “Third Named Complainant”) each represented by Troutman Sanders, LLP, United States of America.

The Respondent is Caribbean Online International Ltd, Nassau, Bahamas.

2. The Domain Names and Registrar

The disputed domain names <gorgiapower.com> and <alabampower.com> are registered with Capitoldomains.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2007. The hard copy was received on July 16, 2007.

On July 18, 2007, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the domain name at issue.

On July 18, 2007 Capitoldomains, LLC transmitted by email to the Center its verification response and following a query from the Center seeking clarification on July 20, 2007 the registrar confirmed on July 21, 2007 that the Respondent is listed as the registrant of both domain names in dispute and provided contact details for the Respondent.

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 24, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 13, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 14, 2007.

The Center appointed James Bridgeman as the sole panelist in this matter on August 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 First Named Complainant is a corporation that is incorporated under the laws of the state of Georgia, United States of America. The Second Named Complainant is a corporation that is incorporated under the laws of the state of Alabama, United States of America; and the Third Named Complainant is a corporation incorporated under the laws of the state of Delaware, United States of America.

The Third Named Complainant is a Fortune 500 company. It is one of the largest producers and providers of electricity and energy related services in the United States of America. The First and Second Named Complainants are wholly owned subsidiaries of the Third Named Complainant and are well known utility companies that have provided electricity to residents of Georgia and Alabama respectively for many decades.

The First Named Complainant is the owner of a number of US federal trademark and service mark registrations including registration number 2,169,059, registered on June 30, 1998 and 2,778,426, registered on October 28, 2003 for the word mark GEORGIA POWER in class 39 for utility services, namely transmission of electricity and public utility services namely transmission, distribution, transportation and storage of natural gas.

The Third Named Complainant, being the parent corporation, is the owner of US federal trademark registrations nos. 2,169,185, registered on June 30, 1998 and 2,347,150, registered on May 2, 2000 for the mark GEORGIA POWER, A SOUTHERN COMPANY & Design for electric utility services and for clothing in international classes 39 and 25 respectively.

The Second Named Complainant is the registered owner of US federal trademark registration for ALABAMA POWER registration number 2,156,129, registered on May 12, 1998 in international classes 39 and 40 for utility services, namely the transmission of electricity. Its parent corporation, the Third Named Complainant is the registered owner of US federal trademark registrations for ALABAMA POWER A SOUTHERN COMPANY & Design, registration numbers 2,174534 and 2,338654 for electric utility services and clothing, respectively.

The domain name <gorgiapower.com> was created on September 5, 2005. The domain name <alabampower.com> was created on August 29, 2005.

5. Parties’ Contentions

A. Complainant

The Complainants rely on their respective rights pursuant to the above listed US registered trademarks and state that many of these registrations have been registered on the Principal Register of the Patent and Trademark Office for more than five years and therefore have become incontestable.

The Complainants further submit that they also have established substantial common law rights in the GEORGIA POWER and ALABAMA POWER marks and their corporate names through the use of those marks and names to identify themselves and the source and origin of their products and services.

The Complainants submit that the Respondent is a typosquatter and cybersquatter who has registered and is using the domain names <gorgiapower.com> and <alabampower.com>, each being close misspellings of GEORGIA POWER and ALABAMA POWER trademarks and service marks in bad faith to profit from those marks.

The Complainants submit that the Respondent’s conduct is in violation of the Policy and the Complainants request that the Panel direct that the domain name <gorgiapower.com> be transferred to the First Named Complainant and that the domain name <alabampower.com> be transferred to the Third Named Complainant.

The Complainants submit that the Third Named Complainant is one of the largest generators of electricity and providers of energy related services in the United States of America. It is a diversified energy company with over USD $ 14 billions in assets. The Third Named Complainant sold 201 kilowatt-hours sales of electricity in 2006 through its wholly owned electric utility subsidiaries which include the First and Second Named Complainants and its wholly owned wholesale electric subsidiary.

The First Named Complainant is the largest of its parent corporation’s wholly owned subsidiaries, serving 2.3 million residential and commercial customers in all but 6 of the 150 counties in the state of Georgia, United States of America. Since 1926 the First Named Complainant has continuously and exclusively used the trademark and service mark GEORGIA POWER in connection with the provision of a wide variety of goods and services, including utility transmission and electricity services, energy generation plants, environmental preservation initiatives, educational services and even through the sale of clothing bearing the GEORGIA POWER mark. The name and mark GEORGIA POWER has been continuously and extensively used by the First Named Complainant in interstate commerce to distinctively and uniquely identify, advertise, market and promote its energy related goods and services. The First Named Complainant has received numerous national awards and recognition in connection with the services it provides under the GEORGIA POWER mark including the Edision Electronic Institute 2002 Minority Business Development Award, the U.S. Small Business Administration Dwight D. Eisenhower Award for Excellence, the 2003 Platts Global Energy award for “Marketing Campaign of the Year” for its flatbill program, and Industry Excellence Award from the Southeastern Electrical Exchange, also for its flatbill program, a number one ranking in customer satisfaction for electric utilities by American Customer Satisfaction Index for the fourth year in a row. In 2006 the First Named Complainant set an all time peak customer load of 17,150 megawatts and reported a net income of USD 787 million on revenues of USD 7.2 billion in 2006.

The First Named Complainant employs more than 9,000 people and is recognized by SITE SELECTION magazine as one of the top utilities in North America for economic development. The Complainants submit that the GEORGIA POWER mark has achieved significant fame and notoriety throughout the United States of America. A copy of the corporation’s 2006 annual report has been admitted as an annex to the Complaint.

The Complainants submit that their above-listed trademark registrations constitute evidence of the Complainants’ exclusive right to use the GEORGIA POWER and ALABAMA POWER trademarks in commerce nationwide in the United States of America. The Complainants further submit that many of the Complainants’ trademark registrations have been registered on the Principal Register of the Patent and Trademark Office for more than five years and have therefore become incontestable.

The Complainants submit that they own all rights, title and interest in the GEORGIA POWER trademarks. They further submit that the GEORGIA POWER marks are distinctive and serve to uniquely identify the Complainants and their goods and services to the consuming public. The Complainants submit that they have expended tens of millions of dollars advertising their services with the GEOGRIA POWER marks in the United States of America. In addition the Complainants have sold billions of dollars in goods and services identified by their GEORGIA POWER marks. As a consequence of such use the Complainants have established tremendous goodwill in the GEORGIA POWER marks among the consuming public.

The Complainants submit that the Second Named Complainant has continuously used the ALABAMA POWER trademark and service mark since prior to 1950 to uniquely identify its goods and services in the field of electric generation, transmission and distribution services and related goods and services in interstate commerce.

The Second Named Complainant operates more than 81 electric generating units with a total nameplate capacity of more than 15 million kilowatts, and it supplies energy to a 45,000 square mile service territory spanning most of the state of Alabama where Alabama Power has approximately 1.4 million customers. In the year 2006 the Second Named Complainant reported a net income for 2006 of USD $ 518 million on revenues of USD $ 5.0 billion, all under the ALABAMA POWER mark. Collectively the Second Named Complainant and its parent corporation the Third Named Complainant own all right, title and interest in and to the ALABAMA POWER mark and to other marks incorporating the term ALABAMA POWER.

The Second Named Complainant and its parent corporation own all rights, title and interest in and to the ALABAMA POWER marks. The ALABAMA POWER marks are distinctive and serve to uniquely identify the Second Named Complainant and its goods and services to the consuming public. In addition the ALABAMA POWER marks have been the subject of millions of dollars of advertising and promotion in the United States of America and billions of dollars in services identified by the ALABAMA POWER marks have been sold. The Complainants have invested a substantial amount of time, money and other resources promoting the ALABAMA POWER marks to advertise and identify their products and services and have established tremendous goodwill in the marks. As a result, ALABAMA POWER marks are well known among the consuming public as identifying the services of the Second Named Complainant.

The Second Named Complainant owns and maintains an Internet web site located at the “www.alabamapower.com” address which is used to provide information about the corporation and the energy-related goods and services provided by the corporation.

The Complainants submit that the domain names in dispute are identical or confusingly similar to the Complainants GEORGIA POWER and ALABAMA POWER trademarks and service marks. The domain name <gorgiapower.com> is a close misspelling of the name and mark GEORGIA POWER and the domain name <alabampower.com> is a close misspelling of the name and mark ALABAMA POWER.

Persons inadvertently misspelling the words “Georgia” or “Alabama” by typing the word “gorgiapower”, a close misspelling of the GEORGIA POWER mark and the word “alabampower”, a close misspelling of ALABAMA POWER, are directed to the Respondent’s websites. The Respondent’s websites contain a list of hyperlinks to numerous other websites that advertise various goods and services that have nothing to do with the Complainants, however, the Respondent’s websites are fashioned in a way that suggests that the Complainants might sponsor or have some connection with the websites. For example, the first link that appears on the “www.gorgiapower.com” website is “Natural Gas Rates in GA” but when the user clicks on that link he or she is brought to the website of a competitor of the Complainants. Likewise the first link that appears on the “www.alabampower.com” website, is “Alabama power”, but when that link is clicked the user is brought to an eBay site for auctions involving merchandise that relate to Alabama in some way. These misleading links all contain hyperlinks to other websites advertising a variety of goods and services that have nothing to do with the Complainants and yet are fashioned to appear as if there is a connection or affiliation with the Respondent. To prove these allegations, the Complainants have furnished copies of print outs of the Respondent’s websites as of July 2, 2007 as an annex to the Complaint.

The Complainants submit that when an Internet user is diverted from the Complainants’ website to the Respondent’s website, the Complainants lose an opportunity to interact with that person. Furthermore an Internet user may inadvertently click on one of the advertisements or hyperlinks on the Respondent’s site and mistakenly believe that the Complainants have authorised or endorsed the site or its advertising content or hyperlinks.

The Complainants submit that the Respondent is using the domain names in dispute to improperly benefit from the Complainants trademarks and service marks. Upon information and belief the Respondent receives a payment when Internet users click on one or more of the links or advertisements on its site.

The Complainants state that the Respondent is the named registrant for hundreds of other registered domain names that consist of misspellings of well known and famous trademarks. The Complainants have submitted evidence that the Respondent has registered domain names that include misspelled variations of famous marks such as AMERICAN EAGLE, BANK OF AMERICA, BARE ESSENTIALS, HALLMARK, MACY’S, MITSUBISHI, VICTORIA’S SECRET, VOLKSWAGEN as follows: <americanwagle.com>, <americaneigle.com>, <bakkofamerican.com>, <bareseentuals.com>, <mcacys.com>, <voltswagons.com> and <victirasecret.com>.

The Complainants furthermore state that the Respondent has been named as respondent in other proceedings under the Policy in which the Respondent was found to have unlawfully registered and used those domain names. The Complainants have submitted a list of said proceedings as an annex to the Complaint.

The Complainant further submits that the Respondent is not, and never has been, identified by the names GEORGIA POWER or ALABAMA POWER, and has not used these marks or names or the domain names in dispute in connection with a bona fide offering of goods or services.

The Respondent has not acquired any trademark or service mark rights for the GEOGRIA POWER or ALABAMA POWER marks or any mark incorporating those marks.

The Respondent is not making a non-commercial or fair use of the domain names in dispute. Instead the Respondent has been using the domain names in dispute as the address of websites to misleadingly divert users from the Complainants’ websites for commercial gain.

The Respondent is not a licensee of the Complainants nor is the Respondent otherwise authorized by the Complainants to use the Complainants trademarks or service marks or to apply for or to use any domain name incorporating the Complainants’ marks.

The Respondent has registered the domain names in bad faith. The Respondent does not conduct any legitimate commercial or non-commercial business using the GEORGIA POWER or ALABAMA POWER marks or any similar marks.

By using the domain names in dispute, the Respondent has intentionally attempted for commercial gain to attract Internet users to its website by creating a likelihood of confusion with the Complainants marks as to the source, sponsorship, affiliation or endorsement of the Respondent’s websites established at the addresses of the domain names in dispute. It is the intention of the Respondent to divert Internet traffic to rogue websites on which they are presented with advertisements, and hyperlinks to other websites for which the Respondent is receiving payment. The Respondent is being unjustly enriched by misappropriating the Complainants’ goodwill and creating a likelihood of confusion with the Complainants’ marks. This is precisely the type of conduct that has been found to be bad faith in numerous panels established under the Policy e.g. Ross-Simons v. Chan, WIPO Case No. D2003-0970, America On-Line Inc. v. Tencent Comm. Corp NAF Case No. FA0002000093668, AutoNation Inc. v. Schaefer, WIPO Case No. D2001-0289.

The Respondent has registered the domain names in dispute with full knowledge of the Complainants’ rights in its trademarks and in the full knowledge that the domain names are virtually identical to the Complainants’ trademarks. There are only minor differences in the misspelling of the Complainants marks in each case. This amounts to typosquatting as it is the registration of a known trademark with minor deviations that mimic the results of typographical errors. In this regard the Complainants refer to the decisions of the panels in Medline Inc. v Domain Active Pty. Ltd, NAF Case No FA 0301000139718, National Assoc. of Prof. Baseball Leagues v Zuccarini, WIPO Case No. D2002-1011.

The Complainants allege that the Respondent has been diverting Internet users away from the Complainants’ websites making it more difficult for customers and the general public to locate the Complainants websites.

The Respondent’s bad faith is further demonstrated by the fact that it has also engaged in a pattern of typosquatting of other well-known marks by registering in excess of 200 domain names that are identical or confusingly similar to well known trademarks.

Continued use of the domain names in dispute by the Respondent would continue to cause serious and irreparable injury and damage to the Complainants’ goodwill associated with their trademarks. Furthermore the Respondents use of the domain names in dispute amounts infringements of the Complainants’ GEORGIA POWER and ALABAMA POWER trademarks and service marks under the Lanham Act.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 4(a) of the Policy requires the Complainant to 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) the 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

The Complainants have established that they are the owners of and have rights in the GEORGIA POWER and ALABAMA POWER trademarks and service marks through their above-listed trademark registrations and at common law through their long established and substantial goodwill in the use of said trademarks in trade and commerce in the United States of America.

This Panel accepts the Complainants’ submissions that the domain names in dispute are confusingly similar to the Complainant’s trademarks.

The domain name <gorgiapower.com> is a close misspelling of the name and mark GEORGIA POWER and the domain name <alabampower.com> is a close misspelling of the name and mark ALABAMA POWER. For reasons given below, this Panel is satisfied that the domain names were chosen and registered by the Respondent precisely because they were in fact confusingly similar to the Complainants’ trademarks.

The Complainants have succeeded in proving the first element of the test in paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

The Complainants have put forward a credible prima facie case that the Respondent has no rights or legitimate interests in the domain names in dispute. In such circumstances, the onus shifts to the Respondent to establish that it has such rights or legitimate interests. As the Respondent has not filed any Response, the Complainants are entitled to succeed on the second part of the test in paragraph 4(a) of the Policy.

There is no indication that the Respondent has ever has been identified by the names GEORGIA POWER or ALABAMA POWER. On the balance of probabilities the Respondent has not used these marks or names or the domain names in dispute in connection with any bona fide offering of goods or services in view of the content of its website.

Neither is there any evidence that the Respondent has acquired any trademark or service mark rights for the GEOGRIA POWER or ALABAMA POWER marks or any mark incorporating those marks. While the Respondent is established in Bahamas, the Respondent’s website has advertisements and links to enterprises operating in the United States of America and given the long and strong reputation of the Complainants marks in the United States of America, it is unlikely that the Respondent would have used these names and marks for any bona fide commercial purpose.

The Respondent is clearly not using the domain names for a non-commercial purpose. The indications are that the sites have been established to generate click through revenue for the Respondent. The use of the domain names to misleadingly divert the Internet users from the Complainant’s websites could hardly be considered a “fair use” of the domain names in dispute for the purposes of the Policy.

Furthermore the Complainants have certified that the Respondent is not a licensee of the Complainants nor is the Respondent otherwise authorized by the Complainants to use the Complainants trademarks or service marks or to apply for or to use any domain name incorporating the Complainants’ marks.

In the circumstances this Panel finds that the Complainants have succeeded in establishing the second element of the test in paragraph 4(a) of the Policy also.

C. Registered and Used in Bad Faith

On the evidence before this Panel, the Respondent has chosen not one but two domain names that are confusingly similar to the Complainants trademarks. Each of the domain names are close misspellings of the words “Georgia power” and “Alabama power” respectively.

Unlike the Complainant’s trademarks, the domain names in dispute have no meaning in the English language. It is obviously more than a coincidence that these names were chosen.

This Panel is satisfied on the evidence that the Respondent is engaged in typosquatting. On the balance of probabilities there is no reason why the Respondent should choose to register these two domain names that are so similar to the Complainants names and marks except for the purpose of seeking to take advantage of Internet users who may make errors of spelling when searching for the Complainants websites.

By such activity, the Respondent intentionally attempted to attract, for commercial gain, Internet users to its web sites and other on-line locations, by creating a likelihood of confusion with the Complainants’ mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site and the other on-line locations accessible by links on the Respondent’s websites. Paragraph 4(b) of the Policy provides that such activity may be taken as evidence of bad faith registration and use.

The Complainants have therefore succeeded in establishing the third and final element of the test in paragraph 4(a) of the Policy and is entitled to succeed in their applications.

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 <gorgiapower.com> be transferred to the First Named Complainant and that the domain name <alabampower.com> be transferred to the Third Named Complainant.

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James Bridgeman
Sole Panelist

Date: September 1, 2007