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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Wachovia Corporation v. Peter Carrington
Case No. D2002-0775
1. The Parties
The Complainant in this administrative proceeding is Wachovia Corporation, a North Carolina corporation, whose principal place of business is One First Union Center, Charlotte, North Carolina, 28288-0013, United States of America.
The Complainant is represented by Pamela C. Gavin, Esq. of Reed Smith LLP, Riverfront Plaza, West Tower, 901 East Byrd Street, Suite 1700, Richmond, Virginia 23219, United States of America.
The Respondent in this administrative proceeding is Peter Carrington, of Jan Luykenstraat 58, 1071 CS Amsterdam, the Netherlands.
The Respondent is not represented.
2. The Domain Names and Registrar
This dispute concerns the domain names identified below:
The registrar with which the domain names are registered is Key-Systems GmbH dba domaindiscount24.com , Saarpfalz-Park Geb. 7, D-66450 Bexbach, Germany.
3. Procedural History
On August 16, 2002, a Complaint was submitted by Wachovia Corporation to the WIPO Arbitration and Mediation Center (the "Center") pursuant to the Uniform Domain Name Dispute Resolution Policy (the "Policy") approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy approved by ICANN on October 24, 1999 (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
The Complaint was properly notified in accordance with paragraph 2 (a) of the Rules. The Respondent has filed no response.
Cherise M. Valles was appointed as sole panelist on September 18, 2002, and submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
The Panel agrees with the Center’s assessment concerning the Complainant’s compliance with the formal requirements. Payment was properly made to the Center.
No further submissions were received by the Center or the Panel. Accordingly, the date scheduled for the issuance of the Panel’s decision was October 2, 2002. There were no extensions granted.
4. Factual Background
The Complainant is a provider of financial services to retail and corporate customers in the United States and internationally. The Complainant’s customers include 9 million households and 900,000 businesses. It has over 4 million online enrollments.
The Complainant owns numerous trademarks federally registered in the United States featuring the WACHOVIA word mark, including:
- WACHOVIA (U.S. Reg. No. 0883529), for banking, trust, insurance, and accounting services;
- WACHOVIA (stylized and design) (U.S. Reg. No. 1729833), for banking and related financial services; and
- WACHOVIA (stylized and design) (U.S. Reg. No. 1735242), for banking and related financial services.
The Complainant is also the registrant of the domain name <wachovia.com>. The Complainant’s domain name directs users to Wachovia’s website, which features information relating to, inter alia, Wachovia’s banking and financial services for individuals, small businesses, and corporations.
5. Parties’ Contentions
A. The Complainant
The Complainant contends that:
- the domain names at issue are identical and/or confusingly similar to a trademark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the domain names; and,
- the domain names were registered and are being used in bad faith.
The Complainant seeks the transfer of the domain names from the respondent to the Complainant in accordance with paragraph 4 (b)(i) of the Policy.
No Response was filed by the Respondent, and therefore, the Complainant’s contentions have not been rebutted.
6. Discussion and Findings
A. The Domain Names are Identical and/or Confusingly Similar to a Trademark in which the Complainant Has Rights
The Complainant has submitted that it has registered trademarks in the United States using the name Wachovia. The Complainant’s trademark registrations constitute "prima facie evidence of the validity of the trademark." Backstreet Prods., v. Zuccarini, WIPO Case No. D2001-0654 (August 24, 2001) § 8A.
The only difference between the Respondent’s domain names and the Complainant’s trademark is the purposeful misspellings of Wachovia. The domain name <wochovia.com> is purposefully misspelled by substituting the letter "o" with the letter "a". The domain name <wachvia.com> is purposefully misspelled by removing the letter "o". Finally, the domain name <wachovai.com> is purposefully misspelled by interchanging the letters "a" and "i". This conduct, commonly referred to as "typo squatting," creates a virtually identical and/or confusingly similar mark to the Complainant’s trademark under paragraph 4(a)(i) of the Policy. See, e.g., America Online, Inc. v. Johuanthan Invs., Inc., WIPO Case No. D2001-0918 (September 14, 2001) § 6 (finding the domain name <aollnews.com> confusingly similar to trade and service marks in which AOL has rights, namely <aolnews.com>). Backstreet Prods., Inc. v. Zuccarini, WIPO Case No. D2001-0654 (August 24, 2001) § 8A (finding, inter alia, the domain names <backsreetboys.com> and <backstreetboyz.com> virtually identical and confusingly similar to the Backstreet Boys’ mark); AltaVista Co. v. Yomtobian, WIPO Case No. D2000-0937 (October 13, 2000) § 6 (finding the domain names <altabista.com> and <altaista,com> confusingly similar to the trademark Alta Vista); Oxygen Media, LLC v. Primary Source, WIPO Case No. D2000-0362 (June 19, 2000) § 6A (finding the domain name <0xygen.com>, spelled with the number zero rather than the letter "o", confusingly similar to the trademark Oxygen); Encyclopaedia Britannica, Inc. v. Zuccarini, WIPO Case No. D2000-0330 (June 7, 2000), § 3 (finding the domain name <encyclopediabrittanica.com> virtually identical and confusingly similar to Encyclopaedia Britannica’s mark).
The Panel finds that the Complainant has met its burden of proof and has established that the domain names at issue, while not identical, are confusingly similar to the trademark in which the Complainant has rights.
B. The Respondent Has No Rights or Legitimate Interests in Respect of the Domain Names
The Complainant submits that it never granted the Respondent any rights to use the WACHOVIA trademark, or any misspellings thereof. Respondent is not known as "wochovia," "wachvia," or "wachovai." Respondent is not making a legitimate non-commercial or fair use of these names, as required by Paragraph 4(c)(ii)–(iii) of Rules. Rather, Respondent uses these domain names to divert Internet users to an entirely different site, namely, "hanky-panky-college.com". This site provides a number of links to pornographic materials. Further, once a viewer turns his or her browser to this site, it results in "pop-up" advertisements appearing. A user must click on a series of windows containing these advertisements before exiting the browser. This practice is commonly referred to as "mousetrapping."
Respondent has no legitimate reason to use these domain names except to divert Internet users who mistakenly type the name "Wachovia." Respondent’s practice of redirecting users to another site after typing in the domain name prevents those users from understanding that they made a typographical-error, and may convince them that Wachovia’s Internet site is not the expected one. See e-Duction, Inc. v. Zuccarini, WIPO Case No. D2000-1369 (February 5, 2001) § 6B. Moreover, "a use that merely operates to redirect mistaken typists to other sites is not enough to create a legitimate use without a greater connection between the domain name and the redirected site." Id.
Respondent’s use of the domain names constitutes none of the above activities. Rather, Respondent uses these domain names solely for the purpose of diverting users to another site for his own commercial gain, thus violating paragraph 4(c)(iii) of the Policy.
Further, the services offered by Respondent are not "bona fide." See paragraph 4(c)(i) of the Policy. Although Respondent provides users with access to various pornographic sites, these services are not "bona fide" because Respondent is using the domain names in bad faith for the purpose of diverting users to his own site through confusion." See AltaVista Co. v. Yomtobian, WIPO Case No. D2000-0937 (October 13, 2000) § 6.
Respondent has submitted no evidence that it has used or intends to use the domain names at issue in connection with a bona fide offering of goods and services. There is no evidence that it has ever been known by these names or that it has made non-commercial fair use of the domain names.
The Panel finds that the Complainant has met its burden of proof and that the Respondent has no rights or legitimate interest in the domain names.
C. The Domain Names Were Registered and Are Being Used In Bad Faith.
Respondent’s practice of using the domain names for the purpose of diverting users to an unrelated Internet site is "classic bad faith." Backstreet Prods., Inc. v. Zuccarini, WIPO Case No. D2001-0654 (August 24, 2001) § 8C (emphasis added). Misspellings alone are "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 creating a likelihood of confusion with the Complainant’s mark." AltaVista Co. v. Yomtobian, WIPO Case No. D2000-0937 (October 13, 2000) § 6.
The Respondent has registered not one, but three, separate misspellings of the name "Wachovia" for the purpose of diverting users to an unrelated site for his own commercial gain. "The picking up of a lapsed domain name and directing it to a pornographic web site raises an overwhelming presumption that the registration and use of the domain name is to trade upon the confusion created with the Complainant’s trademark and the residual reputation of the Complainant’s original web site." Beroiz v. Domain Strategy, Inc., WIPO Case No. D2002-0508 (August 5, 2002) § 6.12. While the domain names at issue in this proceeding have not lapsed, but rather have never been registered previously, the presumption of bad faith when users are directed to a pornographic site can be applied in this proceeding.
The Respondent’s bad faith is further demonstrated by the false contact information he provided to the registrar with which the domain names are registered. See Oxygen Media, LLC v. Primary Source, WIPO Case No. D2000-0362 (June 19, 2000) § 6A (finding bad faith, in part, because respondent provided false contact details to Register.com, Inc.). The address and telephone number provided by Respondent are actually that of the Jan Luyken Hotel of Bilderberg Hotels and Restaurants located in Amsterdam, Netherlands.
The Panel finds that the Complainant has met its burden of proof and that the Respondent registered the three domain names at issue in bad faith.
In accordance with Paragraph 4(i) of the Policy and Paragraph 15 of the Rules, for the reasons described above, the Panel decides that:
(i) the domain name is confusingly similar to a trademark in which the Complainant has rights under paragraph 4 (a) (i) of the Policy;
(ii) the Respondent has no rights or legitimate interests in the domain name under paragraph 4 (a) (ii) of the Policy; and,
(iii) the domain name was registered and is being used in bad faith under paragraph 4 (a) (iii) of the Policy.
The Panel orders that the <wochovia.com>, <wachvia.com>, and <wachovai.com> domain names be transferred to the Complainant.
Cherise M. Valles
Dated: October 2, 2002