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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pancil LLC v. Wan-Fu China Ltd
Case No. D2007-0190
1. The Parties
The Complainant is Pancil LLC of California, United States of America, represented by Melkonian & Company, Australia.
The Respondent is Wan-Fu China Ltd of Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <starfalll.org> (the “Domain Name”)
is registered with Capitoldomains, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 9, 2007. On February 12, 2007, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the Domain Name. On February 13, 2007, Capitoldomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the 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 the Respondent of the Complaint, and the proceedings commenced on February 22, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 14, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 15, 2007.
The Center appointed Ian Lowe as the sole panelist
in this matter on March 23, 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,
4. Factual Background
The Complainant provides instructional and teaching material in the fields of reading and literacy to students and educators via its website at “www.starfall.com”. It is the proprietor of over 100 registered trademarks in respect of STARFALL in numerous jurisdictions including the United States of America, the European Community and Australia.
The Domain Name was registered on December 5, 2006.
5. Parties’ Contentions
A summary of the Complainant’s contentions is as follows:
The Complainant is the registered proprietor of over 100 separate registrations for trademarks comprising STARFALL including in particular:
(a) US trademark number 2,850,793 STARFALL registered as of June 8, 2004 for a range of educational and entertainment services including the provision of tutorials in the fields of reading and literacy; and
(b) Community trademark number 1530260 STARFALL registered as of May 14, 2001 in classes 9, 35, 38 and 42 in respect of a range of goods and services including computer software and online information services.
The Complainant delivers instructional and teaching material online to students and educators at no charge via its website at “www.starfall.com”. Over 20 million copies of printed books have been distributed. The Starfall instructional materials are used by millions of pre-school and primary school students and by thousands of schools throughout the world.
The website at “www.starfall.com” provides the best demonstration of the methods used to teach basic literacy skills. The website has been operational since October 2002 and has required the annual expenditure of millions of dollars to create and maintain. Millions of printed books have been distributed free of charge to deserving students.
The Domain Name is, with a slight misspelling, exactly the same as the Complainant’s registered trademark STARFALL. Starfall itself is a fanciful name that is not descriptive of the Complainant’s services and is entitled to a high level of protection. Because “www.starfall.com” is a website designed for and frequented by young children who are learning to read and write, the likelihood of someone inadvertently adding an additional letter to the Domain Name is even more likely.
The Respondent has not demonstrated any legitimate interests with respect to the Domain Name. It appears from the Respondent’s website that it is nothing but an attempt to sell competing literacy products and services. It has nothing whatsoever to do with the word STARFALL. The Respondent is merely using a very slight misspelling of the Complainant’s fanciful trademark as a means of selling competing products and services.
To the best of the Complainant’s knowledge, the Respondent has never been known as STARFALLL. To the best of the Complainant’s knowledge, the Respondent did not make any use of the Domain Names until after the Complainant’s mark STARFALL had become well-known and well established with a distinct secondary meaning.
Thus, the Respondent is not making any legitimate, non-commercial or fair use of the Domain Name but is using it for commercial gain to mislead consumers and divert them to commercial websites that offer products and services that directly compete with the Complainant.
The Domain Name was registered and is being used in bad faith. The Respondent has intentionally attempted to attract for commercial gain Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location or of a product of service on the Respondent’s website or location. The Respondent stands to gain financially through linking to competing service providers and advertising competing products and services. Because of the diversion of the Complainant’s patrons to the offending website, the Complainant is likely to lose patrons.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered in bad faith and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has provided uncontroverted evidence of numerous trademark registrations around the world in respect of the mark STARFALL (the “Mark”) and of the widespread use of the Mark in relation to the provision of the Complainant’s instructional and teaching materials. The Panel finds that the Complainant has clearly established rights in the Mark.
The Domain Name comprises the whole of the Mark with the addition of an extra letter “l”. The Domain Name (excluding the suffix “.org”) is phonetically identical to the Mark and amounts to merely a slight misspelling of the Mark. Accordingly, the Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Respondent has not replied to the Complainant’s contentions and has not therefore displaced the assertion on the part of the Complainant that the Respondent does not have any rights or legitimate interests in the Domain Name. The Domain Name comprises a misspelling of the Complainant’s Mark. The Domain Name was registered several years after the Mark was registered and became widely-known. The Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
The Domain Name resolves to a search engine and linking portal which offers links in turn to various websites advertising or selling a range of products or services many of which relate to books and learning to read. The Complainant states a number of these comprise products and services that compete with the Complainant’s.
The Respondent has not countered this evidence and the Panel accepts the Complainant’s contention that the Respondent stands to gain financially through providing sponsored links to these competing service providers and advertisers. The Panel therefore accepts that the Respondent appears to intend to attract Internet users to its website or other on-line locations for commercial gain through creating confusion as to the source, affiliation or endorsement of the website or location.
In view of the distinctiveness of the Mark and the particular use of the Domain Name, the Panel finds that the Respondent could have had no legitimate or good faith reason for registering the Domain Name.
Accordingly, the Panel finds that the Respondent has registered and used 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 <starfalll.org> be transferred to the Complainant.
Dated: April 5, 2007