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Arbitration and Mediation Center
Spherion Corporation v. Peter Carrington, d/b/a Party Night Inc.
Case No. D2003-1027
1. The Parties
The Complainant is Spherion Corporation, of Fort Lauderdale, Florida, United States of America, represented by Baker & McKenzie, United States of America.
The Respondent is Peter Carrington, d/b/a Party Night Inc., of Amsterdam, Netherlands.
2. The Domain Name and Registrar
The disputed domain name <shperion.com> is registered with Key-Systems GmbH d/b/a domaindiscount24.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 23, 2003. On December 24, 2003, the Center transmitted by email to Key-Systems GmbH d/b/a domaindiscount24.com a request for registrar verification in connection with the domain name at issue. On January 2, 2004, domaindiscount24.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 7, 2004. The Center verified that the Complaint together with the amendment to 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 January 8, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was January 28, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 3, 2004.
The Center appointed Roberto Bianchi as the Sole Panelist in this matter on February 17, 2004. 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. The due date for the decision was set to March 2, 2004.
On February 25, 2004, the Panel issued Procedural Order No. 1 requesting Complainant to submit additional documentary evidence supporting its allegation that it wholly owns the companies having rights in the SPHERION marks. On March 9, 2004, the Panel received the hardcopy of the requested evidence. Therefore the decision has been rendered on March 10, 2004.
4. Factual Background
The following are un-contested facts:
Spherion Pacific Enterprises LLC owns US registrations for the marks SPHERION and SPHERION and design covering various goods and services, as well as a US pending application for the mark SPHERION and design. Spherion U.S. Inc owns two registrations of the marks SPHERION and SPHERION and design.
Respondent registered the domain name at issue on April 20, 2002. On October 3, 2003, Complainant sent by Federal Express a cease and desist letter to Respondent. The envelope was returned to Complainant’s attorneys.
5. Parties’ Contentions
The domain name at issue is a misspelling of the SPHERION mark, and is practically identical or confusingly similar to the SPHERION mark in which Complainant and its subsidiaries have rights. Respondent has not shown that it has used or that it had demonstrable preparations to use the domain name in connection with a bona fide offering, or that it has been commonly known by the domain name or a similar name or mark, or that it is making a legitimate non commercial and fair use of the domain name. By failing to reply to Complainant’s cease and desist letter Respondent also failed to evidence any right or interest in the domain name. Until recently any person who tried to use the disputed domain name to access an Internet website was connected to a site with pornographic content, which is a compelling evidence of bad faith registration and use of the domain name.
The Respondent did not reply to the Complainant’s contentions, and is in default.
6. Discussion and Findings
A. Domain Name Identical or Confusingly Similar to Mark
Paragraph 4(a)(i) of the Policy requires that a complainant establish
"rights" in a trademark or service mark on which it is basing a claim
of abusive domain name registration and use. See Caleel+Hayden L.L.C. v.
Jaye Pharmacy, WIPO Case No. D2001-1475,
March 29, 2002. With its complaint Complainant has submitted documents
showing that Interim Services Pacific LLC has rights in the SPHERION (Reg. No. 2,497,002)
and in the SPHERION and design (Reg. No. 2,566,686) service marks,
that Spherion Pacific Enterprises LLC has rights in the SPHERION
and design mark application filed on May 31, 2000; and that Spherion U.S. Inc.
has rights in the SPHERION Community trademarks (No. 001553528 and 001936491).
Complainant contended that it wholly owns the companies having rights in the
SPHERION marks. As Complainant did not submit sufficient evidence of such fact
the Panel decided to request documentary evidence from Complainant. "Under
Rule 10(d), the Panel has the power to determine the admissibility, relevance,
materiality and weight of the evidence. Although this administrative proceeding
is a summary one […] and although this Panel has no desire to encumber the domain
name proceedings with unnecessary formalities, certain minimum standards of
proof should be required in any forum." Cyro Industries v. Contemporary
Design, WIPO Case No. D2000-0336,
June 19, 2000.
In response to Procedural Order No. 1 Complainant proved that through its wholly owned subsidiaries it has rights on several SPHERION marks, whose registrations, use in commerce and applications pre-date Respondent’s registration of <shperion.com>. With the Certificate of Amendment to Certificate of Formation of June 27, 2000, Complainant evidenced that Interim Pacific Enterprises LLC changed its name to Spherion Pacific Enterprises LLC as of July 7, 2000. Exhibit 2 to Second Amendment to Complaint. Complainant also submitted satisfactory evidence that Spherion Pacific Enterprises LLC and Spherion U.S. Inc. are wholly owned subsidiaries of Spherion Corporation (the Complainant). Exhibit 3 attached to Affidavit of Rochelle Trafton, consisting of Form 10-K submitted by Complainant on March 13, 2003, before the Securities and Exchange Commission of the United States of America.
Both the mark and the domain name at issue have the same letters in common, where the letters "P" and "H have been transposed as follows:
S P H E R I O N
S H P E R I O N
This is a slight difference, which does not suffice to distinguish the domain name from the mark. The Panel is convinced that this is another case of typo-squatting, where the registrant has carefully selected a transposition such as to capture Internet traffic and derive it to websites not intended by the Internet users trying to connect with the Spherion website. This causes confusing similarity of the worst sort. Complainant has thus evidenced that the first requisite of Policy Paragraph 4(a)(i) is present.
B. Rights or Legitimate Interests
Complainant made clear allegations that Respondent lacks rights or legitimate interests to the domain name. By its default Respondent preferred not to present the Panel with any allegation or evidence of any kind of rights or legitimate interest to the domain name. To the contrary, the only evidence relating to the use of the domain name points to the pornographic character of the links reached by Internet users who misspelled Complainant’s marks by involuntarily changing the position of the letters "P" and "H." Exhibit K annexed to the complaint (Affidavit of Rochelle Strafton of December 18, 2003).
Such use of the domain name cannot be based on any right or legitimate interest to the domain name. Instead it is a use in bad faith. Complainant has also evidenced the second prong of the Policy (Paragraph 4(a)(ii)).
C. Registered and Used in Bad Faith
This panel coincides with the Panel in National City Corporation v. Party
Night Inc, Phayze Inc., WIPO Case D2003-0683,
decided on October 20, 2003, that "the use of the domain names
to offer pornographic material certainly tarnishes the Complainant’s existing
marks, which is evidence of bad faith."
The Panel also shares the view of the Panel in Wachovia Corporation v. Peter
Carrington, WIPO Case D2002-0775,
decided on October 2, 2002, citing AltaVista Co. v. Yomtobian,
WIPO Case D2000-0937, decided on October 13, 2000,
finding that 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." Accordingly
Complainant proved that Respondent registered and is using the domain name in
bad faith (Policy, Paragraphs 4(a)(iii) and 4(b)(iv)).
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 <shperion.com> be transferred to the Complainant, Spherion Corporation.
Dated: March 10, 2004