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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Gateway, Inc. a/p/k eMachines, Inc. v. Kemal Demircioglu
Case No. D2006-0913
1. The Parties
The Complainant is Gateway, Inc. a/p/k eMachines, Inc, Irvine, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.
The Respondent is Kemal Demircioglu, Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <emachine.com> is registered with Moniker Online
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2006. On July 20, 2006, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On August 4, 2006, Moniker Online Services, LLC 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 August 9, 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 August 17, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 6, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 11, 2006.
The Center appointed Fleur Hinton as the Sole Panelist
in this matter on October 2, 2006. 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,
4. Factual Background
The domain name <emachine.com> was registered with Moniker Online Services LLC with the billing and administrative contact listed as ‘Registrant 317819’ when the Complainant lodged this complaint. However, on August 4, 2006, the Registrar changed the Whois listing to show Kemal Demircioglu as the registrant, administrative and billing contact for the disputed domain name. The registrant, now the Respondent, has an address in Istanbul Turkey.
The Complainant is a publicly-traded manufacturer
and distributor in the United States of personal computers, consumer electronics
products and other related goods. It also provides services in respect of its
products and has very substantial net sales reaching $3.9 billion in 2005. It
operates the <emachines.com> website and owns United States trademark
registrations for EMACHINES, the earliest of which dates from 1992.
5. Parties’ Contentions
The Complainant relies upon its substantial reputation in the website “www.emachines.com” and its trademark registrations for EMACHINES as a basis for its complaint that the Respondent’s domain name registration <emachine.com> is confusingly similar to the domain name <emachines.com> of the Complainant. In addition, the Complainant has developed its trademark and promoted its goods and services extensively so that the EMACHINES trademark is associated with it around the world.
The Respondent has not been licensed by the Complainant to use the trademark EMACHINE or EMACHINES and has no need to use it in order legitimately to describe its goods or services. Further, the Respondent’s registration of the domain name <emachine.com> occurred a long time after the Complainant had already gained a substantial reputation in its trademark and domain name <emachines.com>. The Respondent therefore cannot have a legitimate interest in the domain name <emachine.com>.
The Respondent has no reputation in the trademark EMACHINE and his name has no connection with it. Further, the Respondent’s website at “www.emachine.com” does not have any content linking it with the Respondent but merely provides links to other people’s websites, including the Complainant’s. The Respondent has therefore registered the domain name in bad faith.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
A. Identical or Confusingly Similar
The Respondent’s domain name <emachine.com> is confusingly similar to and, indeed, virtually identical with, the Complainant’s domain name <emachines.com> and its various trademark registrations. It is an example of ‘typosquatting’ because the Respondent has simply omitted one letter of the Complainant’s Trademark.
B. Rights or Legitimate Interests
The Respondent has not presented any argument to indicate that he has any right or legitimate interest in the domain name <emachine.com>. All of the surrounding circumstances suggest that he does not.
The Respondent has not been licensed to use the trademark EMACHINE by the Complainant.
The Respondent has no legitimate need to use the domain name <emachine.com> in order to define or describe the goods which he is offering for sale. Indeed, it is apparent from the Respondent’s website that the Respondent himself does not offer any goods or services under the trademark EMACHINE or any other trademark at that website.
C. Registered and Used in Bad Faith
Because of the Complainant’s substantial reputation in its trademark and domain name <emachines.com>, it is virtually inconceivable that the Respondent would not be aware of the Complainant’s reputation in EMACHINES. However, in this instance it is not necessary even to rely on the Complainant’s reputation to make that assumption. In fact the Respondent’s website contains links to websites on which the Complainant’s EMACHINES goods are offered for sale. Clearly, therefore, the Respondent was and is aware of the Complainant and its reputation in EMACHINES both as a trademark and as a domain name.
The Respondent’s use and registration of the domain name <emachine.com>
is an example of ‘typosquatting’ because the Respondent has simply
omitted one letter of the Complainant’s Trademark and domain name. In
the case General Electric Company v. Fisher Zvieli, a/k/a Zvieli Fisher,
WIPO Case No. D2000-0377, the respondent
had registered the domain name <wwwge.com>. General Electric Co. sought
its transfer. It was found by the panelist that this type of conduct constitutes
both use and registration of a domain name in bad faith. The factual situation
here is analogous with the facts in that case.
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 <emachine.com> be transferred to the Complainant.
Dated: October 16, 2006