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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AltaVista Company v. Saeid Yomtobian
Case No. D2000-0937
1. The Parties
The Complainant is AltaVista Company ("AltaVista"), a Delaware corporation having its principal place of business in Palo Alto, California.
The Respondent is Saeid Yomtobian, P.O. Box 260920, Encino, CA, 91426-0920.
2. The Domain Name and Registrar
The domain names at issue are altabista.com and altaista.com. The domain names are registered with Council of Registrars.
3. Procedural Background
Complainant filed its Complaint with the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") on August 3, 2000, by email and by August 7, 2000 in hard copy. On August 24, 2000, the Center notified Complainant that its complaint was deficient. On August 29, 2000, the Center received in hard copy Complainant’s amendment to the Complaint, resolving the deficiency, and on that day, the Center formally commenced this proceeding and notified Respondent that its Response would be due by September 17, 2000. The notification was sent to Respondent by courier and email; SwissPost has confirmed that the courier package was delivered to Respondent at his address, and the email to email@example.com was transferred without receipt of any "undeliverable" notices. Respondent did not file a response by the due date.
Complainant elected a single-member Panel. On October 2, 2000, after clearing for potential conflicts, the Center appointed David H. Bernstein as the Panelist, and set October 17, 2000 as the deadline for issuance of a decision.
4. Factual Background
Because there is no response, the following facts are taken from the complaint and are accepted as true. Talk City Inc. v. Michael Robertson, Case No. D2000-0009 (WIPO, February 29, 2000) at § 5(d).
Complainant is a provider of Internet search, information, e-commerce, and portal services. It has one of the World Wide Web’s largest search indexes and responds to more than 40 million search queries each day. It has trademark rights in ALTAVISTA worldwide, including registrations in the United States for use of the mark to identify computer services, computer software, printed matter, and educational services. Complainant has operated its search site at altavista.com since December 1995, and received its first United States registration, for computer services, in March 1997.
The domain names at issue were registered on May 18, 1997.
On July 17, 2000, Complainant sent a letter by overnight mail to Respondent, demanding that it cease and desist from using the domain names at issue. On July 26, 2000, Respondent telephoned Complainant’s authorized representatives, and sent an email outlining his costs associated with the domain names at issue, and offered to transfer ownership of them for $475.00.
5. Complainant’s Allegations
Complainant alleges that it has valid rights in the ALTAVISTA mark, that it has invested millions of dollars in publicizing the mark, and that it has used the mark widely to ensure automatic identification in the minds of users with excellence in Internet search, information, e-commerce, and portal services. Complainant further alleges that altabista.com and altaista.com are confusingly similar to its ALTAVISTA mark.
Complainant claims that Respondent lacks any rights in the domain names. Complainant alleges that Respondent has no trademark or service mark rights in the domain names, that Respondent does not use either of the domain names as a business name, and that Respondent is not a licensee of Complainant’s mark.
According to Complainant, the domain names at issue automatically forward users to publicadvertising.com, an Internet search engine that copies the look of AltaVista’s home page, including its distinctive colors. Complainant alleges that the search categories available at publicadvertising.com, such as "Gaming," "Shopping," "Finance," and "Sports," are identical or nearly identical to many of the categories on AltaVista’s home page. Complainant has submitted evidence that publicadvertising.com is also registered to Respondent. Moreover, if a user tries to leave public advertising.com, a second window is opened at thriftys.com, another search engine owned by Respondent. In this way, Respondent tries to divert Internet users from the Altavista.com search engine to Respondent’s new search engines.
Complainant alleges that this conduct constitutes a bad faith attempt to disrupt Complainant’s business, to profit by deceiving users as to the source, sponsorship, or affiliation of Respondent’s site, and to misappropriate Complainant’s goodwill. Complainant argues that Respondent is attempting to capture users who inadvertently mistype Complainant’s domain name, and who may assume that they are in fact using services provided by altavista.com, particularly because Respondent’s site imitates the "look and feel" of Complainant’s site.
6. Discussion and Findings
The burden for the Complainant under paragraph 4(a) of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy") is to prove:
(i) That the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) That the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) That the domain name has been registered and used in bad faith.
Complainant has established its rights in the name AltaVista. In addition, the panel finds that the close misspellings at issue here, altabista.com and altaista.com, are confusingly similar to the AltaVista mark. See, e.g., Encyclopedia Britannica, Inc. v. John Zuccarini and The Cupcake Patrol a/ka Country Walk a/k/a Cupcake Party, Case No. D2000-0330 (WIPO, June 7, 2000); Oxygen Media, LLC v. Primary Source, Case No. D2000-0362 (WIPO, June 19, 2000).
Complainant has also established that Respondent has no rights or legitimate interests in respect of the domain names at issue. Respondent is not known as "Altaista" or "Altabista" and is not making a fair use of those names. Policy paragraph 4(c)(ii)-(iii). Nor is Respondent using the domain names "in connection with a bona fide offering of goods or services." Policy paragraph 4(c)(i). Although Respondent does offer search engine services at those sites, the offering of services is not "bona fide" because, as discussed below, Respondent is using the domain names in bad faith to divert users to its own search engine through confusion. Chanel, Inc. v. Estco Technology Group, Case No. D2000-0413 (WIPO, Sept. 18, 2000); Universal City Studios, Inc. v. G.A.B. Enterprises, Case No. D2000-0416 (WIPO, June 29, 2000).
Finally, Complainant has established that the domain names have been registered and are being used in bad faith. The use of misspellings alone is sufficient to prove bad faith under paragraph 4(b)(iv) of the Policy because Respondent has used these names intentionally to attract, for commercial gain, Internet users to his website by making a likelihood of confusion with the Complainant’s mark. Respondent’s bad faith is further demonstrated by his offering of competing search engine services at the diverted sites. See Yahoo! Inc. v. Eitan Zviely, et al., Case No. D2000-0273 (WIPO, June 14, 2000) (use of misspellings to divert consumers to competing service is bad faith); Bennett Coleman & Co. v. Steven S. Lalwani, Case No. D2000-0014 (WIPO, March 11, 2000); Bennett Coleman & Co. v. Long Distance Telephone Company, Case No. D2000-0015 (WIPO, March 11, 2000).
For the foregoing reasons, the Panel holds:
(a) that the domain names altabista.com and altaista.com are confusingly similar to the AltaVista trademark in which the Complainant has rights;
(b) that the Respondent has no rights or legitimate interests in respect of the domain names; and
(c) the Respondent registered and has used the domain names in bad faith.
Accordingly, pursuant to paragraph 4(i) of the Policy, the domain names altabista.com and altaista.com should be transferred to the Complainant.
David H. Bernstein
Dated: October 13, 2000