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Kijiji International Ltd. v. Fookin Ventures
Case No. D2006-0840
1. The Parties
The Complainant is Kijiji International Ltd., San Jose, California, United States of America, represented by Cooley Godward LLP, San Francisco, United States of America.
The Respondent is Fookin Ventures, c/o Gerhardt Schlumpf, Berlin, Germany.
2. The Domain Name and Registrar
The dispute concerns the domain name <kijjiji.com> (the “Domain
Name”), which is registered with eNom, Inc., Bellevue, Washington, United
States of America (“eNom”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2006. On July 3, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 4, 2006, eNom 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, billing, 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 July 5, 2006. 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 July 6, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 26, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 7, 2006.
The Center appointed Michael A.R. Bernasconi, Diane
Cabell and Torsten Bettinger as panelists in this matter on August 30, 2006.
The Panel finds that it was properly constituted. Each member of 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 Complainant is the provider of a number of online marketplaces, including the website “www.kijiji.com”, a website that offers to Internet users the possibility of exchanging specific services, goods, etc. The Complainant is the registered owner of a number of trademarks that consist or include the word KIJIJI in numerous countries of the world and for various classes. The first trademark applications were filed by Complainant in January 2005.
The Respondent registered the disputed Domain Name
on March 9, 2005. Under the Domain Name currently classified ads are offered.
5. Parties’ Contentions
The Complainant contends that the disputed Domain Name is nearly identical and confusingly similar to Complainant’s KIJIJI trademark(s). Further, Complainant contends that Respondent has no rights or legitimate interests in respect of the Domain Name, and that Respondent registered the Domain Name one day after Complainant issued a press release announcing the launch of the international online classified Websites under the brand KIJIJI. Accordingly, Respondent is committing a classic case of typo-piracy, using the Domain Name in bad faith and with the only purpose of attracting, for commercial gain, Internet users to his website by creating – through a purposefully misspelling of “kijiji” into “kijjiji” - a virtually identical and/or confusingly similar termto the Complainant’s trademark.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
A. 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
B. the Respondent has no rights or legitimate interests in respect of the Domain Name; and
C. the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
It is undisputed that the Complainant is the owner of trademarks containing the word or corresponding to the word “kijiji”; indeed, the Complainant has provided evidence of valid trademark registrations for the KIJIJI mark..
The Panel also finds that Respondent’s <www.kijjiji.com> domain name is confusingly similar to Complainant’s KIJIJI trademarks. Respondent’s domain name consists of a misspelling of Complainant’s trademark, with the simple addition of the letter “j”. It is well established that the addition of the letters “www” and of the generic top-level domain (“gTLD”) “.com.” can be disregarded for the purpose of this comparison.
It is widely recognized that the simple addition of one letter, aiming at reaching such Internet users misspelling the name of a certain domain name, is a type of conduct commonly referred to as “typo squatting” in it creates a virtually identical and/or confusingly similar mark to the targeted trademark(s). Moreover, as noted panels have previously held that the addition of the letters “www” and a gTLD do not sufficiently distinguish a domain name from a trademark.
Therefore, in the view of the Panel, the disputed Domain Name is confusingly similar to the trademark KIJIJI of the Complainant. The Complainant has therefore succeeded in proving the first criterion, as per paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy defines the circumstances which, if proved, establish a registrant’s rights or legitimate interests to a disputed domain name.
There is no evidence before the Panel that the Respondent is commonly known by the disputed Domain Name or has been authorized by the Complainant to use the KIJIJI trademark.
The Panel finds that the evidence on record fails to indicate that Respondent is commonly known by the < kijjiji.com> domain name. Further, Complainant avers that Respondent is not affiliated with Complainant, and is not authorized by Complainant to use the KIJIJI mark or to register domain names incorporating Complainant’s mark. The evidence also fails to suggest that Respondent has any form of association with Complainant.
Additionally, as will be discussed subsequently, the Panel finds that Respondent is utilizing the Domain Name to divert Internet users to Respondent’s website by taking advantage of a common typing error. Thus, the Panel finds that Respondent is in all likelihood engaged in typo-squatting, and that such activity serves as further evidence of Respondent’s lack of rights or legitimate interests in the Domain Name. Such conduct appears to serve the purpose of generating revenues and misleads Internet users by diverting traffic intended for the Complainant to websites, which are in no way connected with the word “KIJIJI,” and it creates the misleading impression of association with the Complainant.
In consideration of the above, the Panel concludes that Complainant has established that the Respondent has no rights or legitimate interests in respect of the disputed Domain Name. The second requirement of paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
The Panel is of the view that the typo-squatting nature of the use of the Domain Name by the Respondent is evidence that the Respondent is using the Domain Name in bath faith.
The Respondent in all likelihood intentionally attempts to attract Internet users intending to visit the Complainant’s website, aiming at reaching those who may commit an obvious typing error, taking in consideration the rather uncommon word kijiji, at least for a large number of Internet users not fluent in Swahili (“kijiji” is said to mean “village” in such language). Against this background, the misspelling of the Domain Name and the typo-squatting of the Respondent is compelling evidence of the Respondent’s use in bad faith of the Domain Name under paragraph 4(b)(iv) of the Policy.
Under these circumstances, and taking into consideration the fact that the
Respondent has not provided any evidence whatsoever of any good faith use by
the Respondent of the Domain Name, the Panel considers that the Respondent has
registered and used the Domain Name in bad faith. Thus, the third requirement
of Paragraph 4(a) of the Policy is satisfied.
Therefore, and in consideration of the Complainant’s compliance with the formal requirements for this domain name dispute proceeding, of Respondent’s default in submitting a Response, of the factual evidence and legal contentions that were submitted, of the confirmation of the presence of each of the elements contemplated in Paragraph 4(a)(i)(ii) and (iii) of the Policy, and on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and other applicable rules and principles of law, as directed by Paragraphs 14(a) and (b) and 15(a) of the Rules, it is found:
(1) that the Domain Name is confusingly similar to the Complainant’s trademark;
(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(3) that the Domain Name has been registered and is being used in bad faith by the Respondent.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed Domain Name <www.kijjiji.com> shall be transferred to the Complainant.
Michael A.R. Bernasconi
Dated: September 15, 2006