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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Traffic101.com, Inc. v. Keyword Marketing Inc.
Case No. D2007-0184
1. The Parties
Complainant is Traffic101.com, Inc. of Studio City, California, United States of America.
Respondent is Keyword Marketing Inc. of Charlestown, West Indies, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <trafic101.com> is registered with BelgiumDomains,
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 9, 2007. On February 13, 2007, the Center transmitted by email to BelgiumDomains, LLC a request for registrar verification in connection with the domain name at issue. On February 13, 2007, BelgiumDomains, LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent’s contact details. The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on February 15, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 7, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 8, 2007.
The Center appointed Ross Carson as the sole panelist in this matter on March 13, 2007. 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.
Upon reviewing the Complaint, the Panel concluded
that there appeared to be a possible misnomer as to Complainant. The Panel issued
an administrative order requesting that the owner of the registered trademark
for TRAFFIC101.COM be named as Complainant. In response to the order, Complainant
filed an amended Complaint naming Traffic101.com, Inc. as Complainant. The amended
Complaint was served on Respondent who was granted an extension of time until
April 24, 2007 to file a Response to the amended Complaint. Respondent did not
file a Response to the Amended Complaint.
4. Factual Background
Complainant is the owner of United States Trademark Registration No. 2585496 for the trademark TRAFFIC101.COM registered on the principal register on June 22, 2002. The word mark is registered in International Class 041 in respect of goods and services: Educational services in the nature of providing online traffic school courses. The trademark was first used in commerce on January 1, 1998. Complainant has offered online traffic school, traffic safety and defensive driving for all the states in the United States of America.
The domain name in dispute was registered by Respondent
on November 13, 2005.
5. Parties’ Contentions
A.1 Identical or Confusingly Similar
Complainant states that it is the registered owner of the trademark TRAFFIC101.COM as described in paragraph 4 immediately above. Complainant submits that the domain name in dispute is identical to the registered trademark TRAFFIC101.COM except for the misspelling of “traffic” in which an “f” is missing.
A.2 No Rights or Legitimate Interests in respect of the Domain Name
Complainant submits that Respondent registered the disputed domain name on November 13, 2005, long after Complainant’s registration of the TRAFFIC101.COM trademark on the principal register in the United States of America. Complainant further submits that Respondent has no rights or legitimate commercial or private interests in the TRAFFIC101.COM trademark. Complainant states that Respondent’s website associated with the disputed domain name does not provide any services to the public, only links to distributors and services offered by competitors of Complainant relating to Internet traffic school services.
A.3 Registered and Used in Bad Faith
Complainant submits that Respondent’s adoption and use of the disputed domain name is in bad faith, has continued with full knowledge of Complainant’s prior trademark rights, and is a willful infringement of Complainant’s prior rights. Respondent is using the confusingly similar domain name in dispute incorporating a misspelling of Complainants trademark for its own commercial gain, by diverting Internet browsers familiar with Complainant’s trademark to Respondent’s website featuring links to the websites of competitive Internet traffic school services in direct competition with Complainant’s business in order to receive compensation for directing users to such competitive websites.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “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”.
Paragraph 4(a) of the Policy requires that Complainant prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The fact that Respondent did not submit a Response
does not automatically result in a decision in favor of Complainant. The failure
of Respondent to file a Response results in the Panel drawing certain inferences
from Complainant’s evidence. The Panel may accept all reasonable and supported
allegations and inferences following there from in the Complaint as true. Charles
Jourdan Holding AG v. AAIM, WIPO Case
A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, Complainant must establish rights in a trademark and secondly show that the domain name in dispute is confusingly similar to the trademark in which Complainant has rights.
Complainant has established that it is registered as the owner of a United States trademark registration on the principal register for the trademark TRAFFIC101.COM, U.S. Registration No. 2585496, registered in relation to educational services in the nature of providing online traffic school courses.
The domain name in dispute <trafic101.com> is
identical to Complainant’s registered trademark TRAFFIC101.COM in sound
and idea suggested by the trademark, but differs by the absence of one letter
“f” found in Complainant’s registered trademark. Respondent
is involved in “typosquatting”, the practice of using a domain name
which is a misspelling of Complainant’s trademark. In Oxygen Media,
LLC v. Primary Source, WIPO Case No. D2000-0362,
the panel found that the domain name <0xygen.com>, with a “zero”
in place of the letter “O” was calculated to trade on Complainant’s
name by exploiting likely mistakes by users of the URL.
The Panel finds that Complainant has proven that the domain name in dispute is confusingly similar to Complainant’s registered trademark TRAFFIC101.COM.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that Respondent has no rights or legitimate interests in respect of the domain name.
Respondent has no United States trademark registration for the trademark TRAFFIC101.COM. Respondent is not affiliated with Complainant and has never been authorized by Complainant to use Complainant’s registered trademark or any trademark confusingly similar thereto.
The web page associated with the domain name in dispute
displays a series of sponsored links relating to online driving school services
offered by competitors of Complainant. In similar circumstances, UDRP decisions
have consistently found that registrants that “park” their domain
name using redirecting services have not made a bona fide offering of
goods or services giving rise to any right or legitimate interest in the domain
name in dispute. Deloitte Touche Tohmatsu v. Henry Chan, WIPO
Case No. D2003-0584.
It is difficult for a complainant to prove the negative that a respondent does not have any rights or legitimate interests in a domain name in dispute. Respondent was given the opportunity by way of reply to demonstrate any rights or legitimate interests in the domain name in dispute pursuant to paragraph 4(c) of the Policy. Previous decisions under the UDRP have found it sufficient for Complainant to make a prima facie showing that Respondent does not have any rights or legitimate interests in the domain name in dispute. Respondent did not file a Response and avail itself of the benefits of paragraph 4(c) of the Policy.
The Panel finds that Complainant has proven that Respondent does not have any rights or legitimate interests in the domain name in dispute.
C. Registered and Used in Bad Faith
The Panel finds that the circumstances of this case indicate that Respondent registered the domain name in dispute with actual knowledge of Complainant’s United States trademark registration for TRAFFIC101.COM which had been registered and used in the United States in association with educational services in the nature of providing online traffic school courses.
Respondent is involved in “typosquatting”,
the practice of using a domain name which is a misspelling of Complainant’s
trademark TRAFFIC101.COM. Respondent was also held to be involved in “typosquatting”
and acting in bad faith in La Sociйtй des Autoroutes Paris Rhin Rhone
v. Keyword Marketing Inc., WIPO Case No. D2006-1270.
Respondent is using the confusingly similar domain name <trafic101.com> to attract users to Respondent’s website for commercial gain by creating a likelihood of confusion with Complainant’s trademark as to source, sponsorship, affiliation or endorsement of Respondent’s website constituting bad faith under paragraph 4(b)(iv) of the Policy.
The Panel finds that Complainant has proven that Respondent
registered and is using the domain name in bad faith.
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 <trafic101.com> be transferred to Complainant.
Dated: May 1, 2007