WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

The Coryn Group, Inc. and Apple Vacations East, Inc. v. Azra Khan

Case No. D2003-0655

 

1. The Parties

The Complainants are The Coryn Group, Inc. (the "First Complainant"), Wilmington, Delaware, United States of America, and Apple Vacations East, Inc. (the "Second Complainant"), Newtown Square, Philadelphia, United States of America, represented by Holland & Knight, LLC, United States of America.

The Respondent is Azra Khan, Rawalpindi, Pakistan.

 

2. The Domain Name and Registrar

The disputed domain name <applevaction.com> (the "Domain Name") is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 20, 2003. On August 21, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On August 28, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com 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 September  1, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was September 21, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on September 23, 2003.

The Center appointed Steven A. Maier as the sole panelist in this matter on October 8, 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.

Having reviewed the communications in the light of the Respondentís non-response, the Panel is satisfied that the Center has discharged its responsibility under paragraph 2 of the Rules to notify the Respondent of this Complaint. Under paragraph 14(a) of the Rules, where a party fails to comply with the time limits provided by the Rules, the Panel shall proceed to a decision on the Complaint in the absence of exceptional circumstances. The Panel is aware of no such circumstances in this case.

 

4. Factual Background

The First and Second Complainants are Delaware corporations. The status of the Respondent is unknown. The Respondent registered the Domain Name on March 2, 2002.

 

5. Partiesí Contentions

A. Complainant

The Complainants state that they are leading travel tour providers who offer domestic and foreign vacation packages, including air transportation, ground transfers and hotel accommodation, to customers throughout the US.

The First Complainant is the owner of trade names and service marks including APPLE VACATIONS, APPLE and apple-related pictorial marks. Its US registered service marks include APPLE VACATIONS, registered on October 20, 1987, under registration number 1,462,268.

The Complainants have continuously used the name and mark APPLE VACATIONS and their other names and marks since 1979 in connection with the advertising, promotion and sale of their services. They have sold several millions of dollars worth of vacation packages under these marks. Their advertising has included newspapers, television, radio commercials, billboards, brochures and signage. They promote and sell their travel packages at websites located at "www.applevacations.com" and "www.applevac.com". By virtue of the above matters, the Complainantsí APPLE VACATIONS and other names and marks are strongly distinctive of the Complainants.

The Domain Name consists of the Complainantsí name and mark APPLE VACATIONS but with the second word misspelled only by the omission of the second letter "A" (the Complainant omits to refer to the "S"). The Domain Name is therefore legally identical and confusingly similar to the Complainantsí name and mark.

The Respondent can have no rights in the Domain Name because it is legally identical to the Complainantís name and mark. The Complainants have not licensed the Respondent to use their name and mark and the Respondent is not known by the name or mark in issue.

The Respondent is using the Domain Name to connect to a website at "www1.vipfares.com" which features a vacation travel and booking function. The Respondent competes with the Complainants and is utilising the Complainantsí name and mark to attract Internet users who are interested in the Complainantsí own websites. The registration of the Domain Name for this purpose, and the intentional misspelling of the Complainantís mark, are matters evidencing the Respondentís bad faith.

The Complainants request a transfer of the Domain Name to the First Complainant.

B. Respondent

The Respondent did not reply to the Complainantís contentions.

 

6. Discussion and Findings

In order to succeed in its complaint, a Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:

(i) that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) that the domain name has been registered and is being used in bad faith.

Identical or Confusingly Similar

In this case, the Complainants have established their ownership of the service mark APPLE VACATIONS. They have also established reputation and goodwill in their website at "www.applevacations.com". The Panel finds that the Domain Name, <applevaction.com>, is confusingly similar to the Complainantsí mark, being identical but for the omission of two characters, namely the second "A" and the "S" in VACATIONS.

No Rights or Legitimate Interests

Under paragraph 4(c) of the Policy, there are three sets of circumstances in particular (but without limitation) to which a Respondent may point to demonstrate a legitimate interest in the domain name in dispute. These are:

(i) before any notice to the Respondent of the dispute, its use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) that the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) that the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the trademark or service mark at issue.

The Panel does not consider that any of the above, or any other circumstances which would tend to support the Respondentís legitimate interest in the Domain Name, are present in this case. The Respondent has tendered no evidence in the matter and the Panel agrees with the Complainantsí contention that this is a case of deliberate misspelling of the Complainantsí name and mark (or "typosquatting"). It is to be inferred from all the circumstances that the Respondent registered the Domain Name with the primary intention of diverting Internet users who intend to access the Complainantsí website but make a predictable typing mistake in so doing. This is unfairly to take advantage of the Complainantsí goodwill. While the Respondent is using the Domain Name to offer goods and services via its own website referred to above, such offering is not bona fide in the circumstances. There is no evidence that the Respondent has been commonly known by the Domain Name, and the circumstances set out in subparagraph (iii) above plainly do not apply; indeed the reverse of those circumstances is true.

Registration and Use in Bad Faith

Paragraph 4(b)(iv) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainantís mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.

The Panel finds that the Respondentís registration and use of the Domain Name falls within this provision. The present case involves the deliberate diversion of Internet users who intend to access the Complainantsí website and the taking of unfair commercial advantage of the Complainantsí goodwill.

 

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(a) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <applevaction.com>, be transferred to the First Complainant.

 


 

Steven A. Maier
Sole Panelist

Date: October 17, 2003