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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pig Improvement Company, Inc. v. Platinum Net, Inc.
Case No. D2000-1594
1. The Parties
1.1 The Complainant is Pig Improvement Company, Inc., a corporation organized and existing under the laws of the State of Wisconsin, United States of America, having its principal place of business at 3033 Nashville Road, Franklin, Kentucky, United States of America.
1.2 The Respondent is Platinum Net, Inc., a corporation having an address at Airport Business Center, 5840-B South Semoran Blvd., Orlando, Florida, United States of America.
2. The Domain Name and Registrar
The domain name at issue is <wwwpic.com>, which domain name is registered with Network Solutions, Inc., based in Herndon, Virginia, United States of America.
3. Procedural History
3.1 A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on November 17, 2000, and the signed original together with four copies forwarded by express courier was received on November 21, 2000. An Acknowledgment of Receipt was sent by the WIPO Center to the Complainant, dated November 24, 2000.
3.2 On November 24, 2000, a Request for Registrar Verification was transmitted to the registrar, Network Solutions, Inc. ("NSI") requesting it to: (1) confirm that the domain name at in issue is registered with NSI; (2) confirm that the entity identified as the Respondent is the current registrant of the domain name; (3) provide the full contact details (i.e., postal address(es), telephone number(s), facsimile number(s), e-mail address(es)) available in the registrar’s Whois database for the registrant of the disputed domain name, the technical contact, the administrative contact and the billing contact; (4) confirm that the Uniform Domain Name Dispute Resolution Policy (the "Policy") is in effect; (5) indicate the current status of the domain name.
3.3 On November 30, 2000, NSI confirmed by reply e-mail that the domain name at issue is registered with NSI, is currently in active status, and that the Respondent is the current registrant of the name. The registrar also forwarded the requested Whois details, and confirmed that the Policy is in effect.
3.4 On December 1, 2000, having determined that the Complaint was deficient, the WIPO Center sent a notice of deficiency to Complainant.
3.5 On December 1, 2000, in electronic form, and on December 4, 2000, in hard copy, the WIPO Center received from Complainant an Amendment to the Complaint.
3.6 The WIPO Center determined that the Complaint as amended satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint as amended is in formal compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"), the Uniform Rules, and the Supplemental Rules. The required fees for a single-member Panel were paid on time and in the required amount by the Complainant.
3.7 No further formal deficiencies having been recorded, on December 7, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of December 26, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by courier and by e-mail to the e-mail addresses indicated in the Complaint. In any event, evidence of proper notice is provided by the evidence in the record of the Respondent’s participation in these proceedings.
3.8 A Response was received in electronic form on December 12, 2000. An Acknowledgment of Receipt (Response) was sent by the WIPO Center on December 13, 2000.
3.9 On January 5, 2001, having received M. Scott Donahey’s Statement of Acceptance and Declaration of Impartiality and Independence, the WIPO Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which M. Scott Donahey was formally appointed as the Sole Panelist. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Uniform Rules and the WIPO Supplemental Rules.
4. Factual Background
4.1 Complainant registered the mark PIC with the United States Patent and Trademark Office in a stylized form in 1978 and 1983. It also has registrations or pending applications for the mark PIC in numerous other countries around the world. Complaint, Annex 5. The mark is registered in relation to goods and services related to animal semen, animal breeding, artificial insemination of animals, animal sperm bank services, animal stud services, etc.
4.2 Complainant registered the domain name <pic.com> on December 30, 1992. Complaint, Annex 6. That domain name has been used by the Complainant to resolve to a web site for PIC International Group PLC, an affiliate of Complainant. On that web site, Complainant and its affiliates promote Complainant's goods and services. Complaint Annex 7. Complainant's web site received more than 500,000 hits during the month of October, 2000. Complaint, Annex 8.
4.3 Respondent registered the domain name at issue on May 21, 1999.
4.4 Respondent uses the name at issue to link to a pornographic web site to which the domain name <karasxxx.com> devolves. Complaint, Annexes 9, 10, and 11. The registrant of that domain name is RJB Telecom Inc. Complaint, Annex 12. The operator of the web site is described by Respondent as a "client of respondent."
4.5 Respondent has also registered numerous other domain names, which are for the most part sexually suggestive. A few of these names begin with "www" followed by recognizable word. Complaint, Annex 13.
4.6 When Complainant learned of Respondent's use of the domain name at issue, Complainant sent Respondent a "cease and desist letter." Complaint, Annex 14. When Respondent did not respond, Complainant contacted the Administrative Contact and discussions ensued. Respondent refused to transfer the domain name at issue.
4.7 Respondent is no longer an active Florida corporation, having been dissolved for failure to file an annual report. Complaint, Annex 2. Respondent's Administrative Contact admits that he and another individual have elected to conduct business not as a corporation, but as individuals.
5. Parties’ Contentions
5.1 Complainant contends that Respondent has registered as a domain name a mark which is practically identical or confusingly similar to the marks registered and used by Complainant, that Respondent has no rights or legitimate interests in respect of the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.
5.2 Respondent contends that it has rights or legitimate interests in respect of the domain name and that the name was registered and is being used in good faith, namely to enhance Respondent's business operations. Respondent uses the domain name it has registered to link to pages operated by clients of Respondent. Respondent contends that "pic" is a generic term and is an abbreviation for picture. Respondent contends that the term is descriptive of what the user sees when he/she arrives at the web site to which the domain name at issue resolves.
6. Discussion and Findings
6.1 Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable."
6.2 Since both the Complainant and Respondent are domiciled in the United States, and since United States’ courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States.
6.3 Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
1) 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; and,
2) that the Respondent has no legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and used in bad faith.
6.4 The Panel finds that prior panel decisions have already determined that the addition of "www" in front of registered marks to form a second level domain name ("SLD") does not alter the fact that the domain name so constructed is confusingly similar to the mark. See, e.g., World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, ICANN Case No. D2000-0256.
6.5 Respondent's contention that it has rights to or legitimate interest in the domain name at issue is not well taken. Respondent has not used the "pic" part of the domain name as part of its name and has not used the domain name in connection with a bona fide offering of goods or services. Respondent merely uses the domain name at issue to forward Internet users to the site of Respondent's client, karasxxx.com. This cannot establish rights to or legitimate interests in respect of the domain name at issue. Google, Inc. v. wwwgoogle.com and Jimmy Siavesh Behain, ICANN Case No. D2000-1240.
6.6 The addition of "www" before another term in the SLD is nothing more than an obvious attempt to trade on the value of a mark or domain name of another by positioning oneself to take advantage of typographical errors by the Internet user when entering the URL. The practice has come to be known as "typosquatting." There is no conceivable good faith use to which such a practice can be put. General Electric Company v. Fisher Zvieli, a/k/a Zvieli Fisher, ICANN Case No. D2000-0377. Accordingly, the Panel finds that the domain name at issue has been registered and is being used in bad faith.
For all of the foregoing reasons, the Panel decides that the domain name registered by Respondent is confusingly similar to the mark in which the Complainant has rights, that the Respondent has no rights to or legitimate interests in respect of the domain name at issue, and that the Respondent's domain name has been registered and is being used in bad faith. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name <wwwpic.com> be transferred to the Complainant.
M. Scott Donahey
Dated: January 19, 2001