WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bellsouth Intellectual Property Corporation v. Andrey Michailov
Case No. D2003-0300
1. The Parties
The Complainant is Bellsouth Intellectual Property Corporation, c/o Jacqueline A. Gregorski, Delaware, United States of America, represented by Kilpatrick Stockton, LLP of United States of America.
The Respondent is Andrey Michailov, Moscow, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <wwwbellsouth.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 17, 2003. On April 17, 2003, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name(s) at issue. On the same day, 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. 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 April 23, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was May 13, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on May 14, 2003.
The Center appointed Peter G. Nitter as the sole panelist in this matter on May 26, 2003. 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.
4. Factual Background
After considering the Complainantís assertions, supported by the documents enclosed as annexes to the complaint, and undisputed by Respondent because of its default, the Administrative Panel finds the following:
The Complainant is the holder of several trademark registrations for the trademarks BELL and BELLSOUTH in the United States. The BELLSOUTH mark is also registered in fifty other countries around the world. The oldest trademark registration for BELLSOUTH in the United States is issued in 1989, and the first use of the BELLSOUTH mark dates back to 1984. Complainant and its affiliates have extensively promoted a wide range of goods and services in connection with the BELLSOUTH mark within the United States and abroad.
Respondent has registered the domain name <wwwbellsouth.com>.
5. Partiesí Contentions
The Complainant asserts that:
The domain name at issue is confusingly similar to Complainantís mark, as it is virtually identical to, and a common misspelling of, said mark.
The Respondent has no rights or legitimate interest in the contested domain name, as Complainantís use of the BELLSOUTH mark predates Respondentís registration of the domain name by more than 15 years, and Respondent was aware of the BELLSOUTH mark when registering his domain name. Respondent appears to have no corporate, partnership or business listing under the name "wwwbellsouth" or the foregoing with the suffix ".com"
The domain name was registered and has been used in bad faith, as Complainant reasonably believes that Respondent, prior to his registration of the domain name at issue, was aware that Complainant was the owner of the BELL and BELLSOUTH marks. Respondent has been using the web-site corresponding to the contested domain name to redirect Internet users to various web-sites, some of which is offering commercial services similar or identical to the services offered by Complainant. Respondent has continued the above mentioned use of the contested domain name despite cease and desist letters from Complainant. Respondent has furthermore registered numerous other domain names that are common misspellings of and virtually identical to other well-known trademarks.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy the Complainant has the burden, on the balance of probabilities, to submit evidence in order to convince the Panel of three elements if it wishes to have the Domain Name transferred. It is incumbent upon the Complainant to cumulatively 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 interests in respect of such 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 domain name at issue consists of Complainantís trademark BELLSOUTH, only with the letters "www" inserted in front of said mark. The "www" is an acronym for "world wide web" and is by far the most used prefix in URLís for web pages on the Internet. In relation to domain names, the letters "www" have little or no distinctiveness, as an Internet user would naturally focus on the other parts of the name, in the present case the word "bellsouth". It is also likely that Internet users would confuse the domain name at issue with the domain name of Complainant <bellsouth.com>, by inserting a period in the belief that this is left out by mistake.
The Panel further finds that the practical effect of preceding a trademark with the letters "www" in a domain name is so-called "typo-piracy" (see WIPO Case No. D2000-0256 World Wrestling Federation Entertainment, Inc. v. Matthew Bessette). In previous decisions under the UDRP very similar to the present case, such typo-piracy registrations have been found to be confusingly similar to the trademarks they have attempted to exploit (see WIPO Case No. D2000-0441 Reuters Limited v. Global Net 2000 Inc and WIPO Case No. D2001-1199 Pfizer Inc,. v. Seocho and Vladimir Snezko).
Because of both the visual similarity and the potential for typo-piracy, the Administrative Panel finds that the domain name at issue is confusingly similar to the Complainantís trademark BELLSOUTH.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides examples of circumstances that may demonstrate rights or legitimate interests in a domain name. Such circumstances are: (i) use of, or preparations to use, the domain name in connection with a bona fide offering of goods or services; (ii) the fact that Respondent have commonly been known by the domain name; and (iii) legitimate non-commercial or fair use of the domain name.
There is absolutely no evidence, and the Panel finds it most probable that none of the scenarios of Paragraph 4.c apply to the present case, and that Complainants contentions are correct. The Panel thus finds that Complainant has not granted any license to the Respondent to use its trademarks, nor is there any affiliation between Complainant and Respondent. The Panel finds that Respondent has no corporate, partnership or business listing under the name "wwwbellsouth" or the foregoing with the suffix ".com", and that he is not otherwise known by the domain name. The Panel furthermore find that the Complainant has evidenced that the domain name has been used in connection to the offering of commercial services similar to the services of Complainant.
Complainantís trademark Ďbellsouthí is in the opinion of the Panel distinctive and well known. The Panel finds it unlikely that Respondent would have any rights or legitimate interests in the use of a domain name that is confusingly similar to such a distinctive trademark.
For the above reasons, the Panel concludes that the Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
The Panel finds it most likely that the domain name at issue is registered and is being used in order to create a likelihood of confusion with Complainantís trademark BELLSOUTH through "typo-squatting". Respondent has furthermore tried to commercially exploit the likelihood of confusion by offering products similar to those of Complainant on websites linked to the web page corresponding to the domain name at issue.
The mentioned circumstances are clear indications of registration and use in bad faith in relation to paragraph 4(a) (iii) of the UDRP
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 <wwwbellsouth.com> be transferred to the Complainant.
Peter G. Nitter
Date: June 13, 2003