WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

The Coryn Group, Inc. , Apple Vacations West, Inc. v. V.S. International

Case No. D2003-0664

 

1. The Parties

The Complainant is The Coryn Group, Inc., & Apple Vacations West, Inc., of Pennsylvania, United States of America, represented by Holland & Knight LLC, United States of America.

The Respondent is V.S. International, of Florida, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <applevactions.com> is registered with Tucows.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 22, 2003. On August 26, 2003, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On August 26, 2003, Tucows 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 August 28, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was September 17, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on August 28, 2003.

The Center appointed Sandra Franklin as the sole panelist in this matter on September 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

The Complainant holds trademark registrations for APPLE and APPLEVACATIONS in the United States and in Mexico, with continuous use dating back to 1979. Complainant also uses the domain name <applevacations.com> to advertise, sell and promote its travel and vacation services.

 

5. Partiesí Contentions

A. Complainant

The Complainant makes the following assertions:

1. The Respondentís <applevactions.com> domain name is confusingly similar to the Complainantís APPLEVACATIONS mark.

2. The Respondent does not have any rights or legitimate interests in the domain name <applevactions.com>.

3. The Respondent registered and used the <applevactions.com> domain name in bad faith.

B. Respondent

The Respondent did not reply to the Complainantís 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."

In view of the Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

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

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

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

A. Identical or Confusingly Similar

The Respondentís domain name <applevactions.com> is virtually identical to the Complainantís mark and domain name, but for dropping the second "a", a misspelling of the word "vacation" in the Complainantís mark. Intentional misspelling of a known mark is a common cybersquatting tactic, and the resulting domain names have long been found to be confusingly similar by UDRP Panels. See, for example, Ingram Micro, Inc. v. Kalron, Inc., WIPO Case No. D2001-1252 and Yahoo! Inc. v. Zviely, et al., WIPO Case No. D2000-0273.

The Panel finds that Complainant has established Policy paragraph 4(a)(i).

B. Rights or Legitimate Interests

The Respondentís domain name <applevactions.com> automatically defaults users to the Respondentís main website located at "www.discountreservation.com", a site which appears to compete with the Complainantís. <applevactions.com> is nonsensical if not used purposely to redirect traffic meant for the Complainantís site "www.applevacations.com". The Respondent is not affiliated with the Complainant, does not offer goods under <applevactions.com>, and certainly is not known by such a nonsensical name.

Moreover, based on the Respondentís failure to respond to the Complainantís allegations, the Panel presumes the Respondent has no rights to or legitimate interests in the disputed domain name. See Geocities v. Geociites.com, WIPO Case No. D2000-0326, finding that the Respondent has no rights or legitimate interests in the domain name because the Respondent never submitted a Response or provided the Panel with evidence to suggest otherwise, and, Pavillion Agency, Inc. v. Greenhouse Agency Ltd., WIPO Case No. D2000-1221, finding that Respondentsí failure to respond can be construed as an admission that they have no legitimate interest in the domain names.

Accordingly, the Panel finds that the Complainant has established Policy paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

The Respondent is a competitor of the Complainant who is intentionally redirecting traffic to the Respondentís site for its own commercial gain. Numerous cases decided under the Policy and the United States Anticybersquatting Consumer Protection Act have recognized that intentional misspellings of well-known marks illustrate an intent to attract users to unauthorized web sites for financial gain. See Victoriaís Cyber Secret Limited Partnership v. V Secret Catalogue, Inc. 161 F.Supp.2d 1125, 1131-32 (D.Colo. 2000), and Time Warner Entertainment Company, L.P. v. John Zuccarini, WIPO Case No. D2001-0184. See also Kmart v. Kahn, FA 127708 (National Arbitration Forum November 22, 2002), finding that if the Respondent profits from its diversionary use of the Complainant's mark when the domain name resolves to commercial websites and the Respondent fails to contest the Complaint, it may be concluded that the Respondent is using the domain name in bad faith pursuant to Policy paragraph 4(b)(iv), and State Fair of Texas v. Granbury.com, FA 95288 (National Arbitration Forum September 12, 2000), finding bad faith where the Respondent registered the domain name <bigtex.net> to infringe on the Complainantís goodwill and attract Internet users to the Respondentís website.

The Panel finds that the Complainant has established Policy paragraph 4(a)(iii).

 

7. Decision

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 <applevactions.com> be transferred to Complainant.

 


 

Sandra Franklin
Sole Panelist

Dated: October 8, 2003