WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Go Daddy Software, Inc. v. Daniel Hadani
Case No. D2002-0568
1. The Parties
The Complainant is Go Daddy Software, Inc., an Arizona (United States of America) corporation whose principal place of business is 14455 North Hayden Road, Suite 219, Scottsdale, Arizona, United States of America. Complainant is represented by Christine Jones, its general counsel.
The Respondent is Daniel Hadani, an individual. According to the "whois" database maintained by Direct Information Pvt., Ltd. D/B/A Directi.com, Respondent is located at P.O. Box 1902, Glendale, California, United States of America. Respondent has not appeared, directly or through a representative, in this proceeding.
2. Domain Names and Registrar
The domain names at issue [Contested Domain Names] are:
The Registrar is Direct Information Pvt., Ltd. D/B/A Directi.com, Mumbai, India.
3. Procedural History
The WIPO Arbitration and Mediation Center [the Center] received the Complaint on June 20, 2002 (electronic copy), and June 19, 2002 (hard copy). The Center verified that the Complaint satisfies the formal requirement of the ICANN Uniform Domain Name Dispute Resolution Policy [the Policy], the Rules for Uniform Domain Name Dispute Resolution Policy [the Rules], and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy [the Supplemental Rules]. Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is June 24, 2002.
On June 20, 2002, the Center transmitted via e-mail to the Registrar a request for registrar verification in connection with this case. On June 21, 2002, the Registrar transmitted its verification response to the Center, confirming that Respondent Daniel Hadani is the Contested Domain Names' registrant, administrative contact, technical contact, and billing contact, and providing the "whois" database's contact information for Daniel Hadani (see below).
The Center verified that the Complaint satisfied the formal requirements of the Policy and the Rules on June 24, 2002.
On June 24, 2002, the Center transmitted Notifications of Complaint and Commencement of Administrative Proceeding to the following addresses:
- via post/courier to Daniel Hadani at the postal-mail address shown in the Registrar's "whois" database
- via e-mail to Daniel Hadani at the e-mail address shown in the Registrar's "whois" database
- via e-mail to "email@example.com", "firstname.lastname@example.org", and "email@example.com"
- via e-mail to "firstname.lastname@example.org", an e-mail address shown on the web page to which the Contested Domain Names resolved
The e-mail communications to the three "postmaster" addresses (third category above) were returned. The others were not.
Respondent did not file a Response.
The Center sent Respondent a Notification of Respondent Default on July 17, 2002.
In view of Complainant's designation of a single panelist and Respondent's default, the Center invited Richard G. Lyon to serve as a panelist.
On July 19, 2002, after receiving Mr. Lyon's Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel. The projected decision date is August 2, 2002.
A prelimary issue in cases such as this one, where no Response has been filed and there is no evidence in the record as to whether the Respondent actually received the Complaint or other notice of this proceeding, is whether the Panel has obtained jurisdiction over the Respondent. Rule 10(b) requires that "each Party [be] given a fair opportunity to present its case." Rule 2(a) requires that the Center employ "reasonably available means calculated to achieve actual notice to Respondent."
As outlined above, the Center employed each of the measures listed in Rule 2(a). The only other means that might have been attempted is notice by post/courier to an address, different from the address in the whois database, that was at one time listed on one of Respondent's websites. The Center has advised the Panel that it does not ordinarily go beyond the express requirements of Rule 2(a).
I believe, both as a general rule and in the circumstances of this case, that the Center discharges its responsibility under the Rules to employ "reasonably available means calculated to achieve actual notice to Respondent" by its strict compliance with Rule 2(a). More is required only in exceptional circumstances, including a showing that additional action is likely to provide actual notice and that compliance with the Rules may not. Respondent may blame no one but himself if he has not received actual notice of these proceedings, since that is the natural consequence of his failing to provide accurate or current contact information to the Registrar.
Respondent has consented to the Policy by contract, in its agreement with the Registrar. Even if he did not receive actual notice of the Complaint, there is no unfairness to him when the Complainant and the Center complied with the prescribed notice procedure.
I therefore find that Respondent was "treated with equality" and "given a fair opportunity to present its case" and that there is jurisdiction over Respondent and the Contested Domain Names.
The Panel shall issue its decision based on the Complaint, the evidence presented, the Policy, the Rules, and the Supplemental Rules.
5. Factual Background
Complainant owns the following registered trademarks [the Marks]: GO DADDY SOFTWARE (registered in the United States on September 19, 2000) and GO DADDY (registered in the United States on April 9, 2002). Complainant is the registered user of the domain name <godaddy.com>.
Complainant is an ICANN-accredited registrar of Internet top-level domain names under domains such as .com, .net, and .org. Complainant uses the Marks and its domain name <godaddy.com> in connection with its business of domain name registration.
On or about May 2, 2002, Respondent registered the Contested Domain Names with the Registrar. Each of the Contested Domain Names differs from <godaddy.com> by only one letter. Not coincidentally, on a standard U. S. keyboard the letter "f" is immediately to the left of the letter "g" and the letters "i" and "p" are immediately to the left and right, respectively, of the letter "o."
At the time the Complaint was filed each of the Contested Domain Names resolved to a web site entitled "domainsexpress" at which there were offered domain name registration services very similar to those offered by Complainant. Respondent's web site is also similar in appearance to Complainant's web site <godaddy.com>. See Complaint, Annex 7. Each of the Contested Domain Names now resolves to a page that states "THIS SITE HAS BEEN SHUT DOWN. If you are looking for Go Daddy Software, please click HERE," with a link to Complainant's website.
There is no evidence in the record of any association, legitimate or otherwise, between Respondent and the terms "fodaddy," "gidaddy," or "gpdaddy."
6. Parties' Contentions
In an effort to prove the requisite elements of Paragraph 4(a) of the Policy, Complainant contends as follows:
The Contested Domain Names are confusingly similar or identical to Complainant's name and marks because (1) each of Respondent's domain names differs from Complainant's name and marks by only one letter, and (2) the one letter is adjacent on the keyboard to the letter used in Complainant's name and marks.
Respondent has no rights or legitimate interests with respect to the Contested Domain Names because (1) Complainant is the owner of record of the trademarks GO DADDY SOFTWARE and GO DADDY, and (2) Respondent was on notice of such ownership at the time the Contested Domain Names were registered.
Respondent registered and used the Contested Domain Names in bad faith because (1) Respondent registered the domain names for the purpose of gaining a business advantage as a result of Internet users' confusing Respondent's site with Complainant's site, (2) Respondent provided false or inaccurate data in the concerned registrar's "whois" database, (3) the domain names are nonsensical unless viewed in the context of a keyboard and Complainant's mark, and (4) the site to which the domain names resolve is suspiciously similar in appearance to the interface provided by Complainant, for a fee, to its private label domain name resellers.
Respondent has not responded to the Complaint, and the deadline for doing so expired July 14, 2002. Accordingly, the Panel shall proceed to a decision based solely on the Complaint. Complainant retains its burden of proving the three requisite elements of Paragraph 4(a) of the Policy.
7. Discussion and Findings
In order to prevail in this administrative proceeding, Complainant must prove the following elements, which are set out in Paragraph 4(a) of the Policy:
(i) Respondent's domain names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the domain names; and
(iii) Respondent's domain names have been registered and are being used in bad faith.
Domain Names Identical or Confusingly Similar to Trademark
Domain name registrants who, by registering domain names that differ from famous marks by only one letter, seek to take advantage of users' typographical errors are engaging in "typosquatting." Domain names that constitute typosquatting are "confusingly similar" by definition because the sole attraction of the domain names is their confusing similarity to famous marks.
For example, the following domain names (among many others), which differ from famous marks by only one letter, have been found to be "confusingly similar":
- <miscrosof.com> (confusingly similar to the mark microsoft and the domain name <microsoft.com>)
- <ggogle.com> (confusingly similar to the mark google and domain name, <google.com>)
- <expecia.com> (confusingly similar to the marks Expedia and Expedia.com and the domain name <expedia.com>)
Here, each of the Contested Domain Names differs from Complainant's mark and domain name by one letter, and each differing letter is immediately adjacent on the keyboard to the corresponding letter in Complainant's marks and domain name. This evidence, without rebuttal by Respondent, supports the conclusion that Respondent registered the disputed domain names in order to engage in typosquatting.
Respondent's domain names <fodaddy.com>, <gidaddy.com>, and <gpdaddy.com> are "confusingly similar" to Complainant's marks GO DADDY and GO DADDY SOFTWARE and Complainant's domain name <godaddy.com>.
Absence of Legitimate Interest in the Domain Names
A complainant has the burden of proving that the respondent does not have a legitimate interest in the disputed domain name. Since there is not a strict logical means of proving a negative fact, however, several Panels have recognized that a complainant can meet this burden with a prima facie showing. Once a complainant has made this prima facie showing, the burden shifts to the respondent to show that the respondent has a legitimate interest in the domain name. Paragraph 4(c) of the Policy lists three non-exclusive ways that the respondent can accomplish this showing.
The Panel decisions are not consistent about what constitutes a prima facie showing. One Panel held that a complainant's mere assertion that the respondent does not have a legitimate interest in the domain name is sufficient to shift the burden of proof to the respondent. Another Panel found evidence of the following to be sufficient to shift the burden of proof to the respondent: (1) that the complainant's mark has a worldwide reputation, and (2) that respondent has no connection with the domain name. Other Panels have required that a complainant allege the respondent's inability to demonstrate any of the circumstances listed in Paragraph 4(c) of the Policy.
In the current case, I find that Complainant has established a prima facie case by showing that (1) Complainant owns the Marks (GO DADDY and GO DADDY SOFTWARE), (2) Respondent is neither licensed nor authorized to use the Marks, and (3) Respondent registered the Contested Domain Names after Complainants had registered its Marks. Since Respondent has not filed a Response to the Complaint, I accept the facts alleged (and supported with evidence) in the Complaint to determine whether any of the circumstances listed in Paragraph 4(c) of the Policy exists.
No legitimate interest in the Contested Domain Names appears on the record. On the contrary, Respondent is using the domain names to take advantage of the reputation of Complainant's marks. There is no evidence that Respondent has ever "been commonly known by the domain name[s]." Rather than making a "legitimate noncommercial or fair use of the domain name[s]," Respondent is using the site "for commercial gain" and "to misleadingly divert consumers."
The circumstances listed in Paragraph 4(b) of the Policy are evidence of a respondent's bad faith. In the current case, since Respondent registered and used the Contested Domain Names in the circumstances described in parts (iii) and (iv) of Paragraph 4(b), I find that Respondent registered and used the domain names in bad faith.
Respondent, by registering domain names that anticipate the typographical errors of Internet users attempting to access Complainant's web site and by offering domain name registration services similar to those offered by Complainant, intended to disrupt the business of Complainant by diverting and conducting business with Complainant's potential customers. Since Respondent has not offered any evidence rebutting this inference, I find that Respondent "registered the domain name[s] primarily for the purpose of disrupting the business of a competitor."
Typosquatting is virtually per se registration and use in bad faith. It is difficult to conceive of circumstances that would overcome the inference that the typosquatter "intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site . . . by creating a likelihood of confusion with the complainant's mark as to the source" of the web site. Here, such conduct was undertaken to send Complainant's customers to a site that promoted directly competing services.
For the foregoing reasons, the Panel orders that the domain names <fodaddy.com>, <gidaddy.com>, and <gpdaddy.com> be transferred to the Complainant.
Richard G. Lyon
Dated: August 1, 2002