WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Army and Air Force Exchange Service (AAFES) v. Modern Empire Internet Ltd.
Case No. D2006-0510
1. The Parties
The Complainant is Army and Air Force Exchange Service (AAFES), Dallas, Texas, United States of America, represented by W. Barry Huggins, United States of America.
The Respondent is Modern Empire Internet Ltd., Tseung Kwan O, Hong Kong, SAR of China.
2. The Domain Name and Registrar
The Disputed Domain Name <affes.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2006. On April 24, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On April 24, 2006, 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 May 4, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 24, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 30, 2006.
The Center appointed Charné Le Roux as the sole panelist in this matter on June 13, 2006. 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 is a non-appropriated fund instrumentality of the United States Government and provides a variety of services on US military installations world-wide. It uses its acronym AAFES as a trade mark for general department store services for military personnel, their dependents and authorised government employees.
The Complainant indicates that it registered its mark, AAFES, in June 1998, and that it has used the mark since 1988. The Complainant uses an on-line version of its mark at the website at “www.aafes.com”. The complainant also indicates that there are other names linked with the Complainant, such as STAR CARD, which is the name sometimes associated with its credit card programme, BDU, MILITARY CLOTHING SALES STORE AND MILITARY MEDALS. The Respondent did not reply to the Complainant’s contentions.
The only information regarding the Respondent that is available to this Panel is that the Respondent registered the Disputed Domain Name on July 15, 2001. The website maintained by the Respondent under the Disputed Domain Name resolves to the website at “http://landing.domainsponsor.com”, which the Complainant advises and supports by relevant printouts, is a website offering competing goods and services, in particular military clothing.
5. Parties’ Contentions
The Complainant contends that the Disputed Domain Name is confusingly similar to its trade mark, AAFES, because it consists of a slightly typographical variation of the Complainant’s trade mark and is designed to lead a consumer who misspells or mistypes the AAFES trade mark to the Respondent’s website.
The Complainant also contends that the Respondent lacks rights or legitimate interests in the Disputed Domain Name in that:
a) the Respondent is not commonly known by the Disputed Domain Name;
b) the Respondent has not used the Disputed Domain Name in any legitimate manner connected with the bona fide offering of goods and services;
c) the Respondent has not applied for or obtained any state or federal trade mark or service mark registration for the Disputed Domain Name;
d) the website to which the Disputed Domain Name resolves offers goods and services not related to the Respondent; and
e) the Respondent intended, by the use and registration of the Disputed Domain Name, to mislead customers.
The Complainant contends finally that the Respondent acquired and uses the Disputed Domain Name in bad faith. The Complainant indicates:
a) that the Respondent has registered the Disputed Domain Name with the intention of disrupting the business of the Complainant by misleading customers seeking the goods of the Complainant to competing businesses; .
b) that the Respondent is conducting typosquatting to further deceive the consumer into believing that he or she has access to the Complainant’s website;
c) that the Respondent’s registration of domain names consisting of well-known trade marks owned by third parties being <puritanpride.com>, <croatiaairlines.com> and <weldwheel.com>, constitutes further evidence of bad faith.
The Complainant requests that the Disputed Domain Name be transferred to it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
(i) Procedural Matters
a) Default of the Respondent.
The Respondent has not reacted to the complaint, but this does not relieve the Complainant of the burden of proof. The Respondent’s failure to deny the Complainant’s allegations and the evidence submitted by the Complainant do, however, in terms of the rules, permit the Panel to draw appropriate inferences.
(ii) Substantive Matters
Paragraph 4 of the Policy requires that the Complainant proves each of the following three elements in order for the Disputed Domain Name to be transferred:
a) that the Disputed Domain Name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
b) that the Respondent has no rights or legitimate interests with respect to the Disputed Domain Name; and
c) that the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has proven that it is the owner of rights in the trade mark, AAFES, and that the trade mark has become known as that of the Complainant. The Panel also finds that the Disputed Domain Name is confusingly similar to the Complainant’s trade mark. It consists of a typographical variation of the AAFES trade mark and is phonetically identical to the Complainant’s trade mark. It has been held by previous Panels that a misspelling or typographical variation of a trade mark does not assist the Respondent in escaping a finding of confusing similarity, for example, the domain names, <ticketmaser.com>, <ticketmaste.com>, <ticketmasster.com> and <tickettemaster.com>, were held by previous Panels to be confusingly similar to the trade mark TICKET MASTER. Similar decisions were made with respect to the domain names <mikerosoft.net> and <yawho.com>.
B. Rights or Legitimate Interests
The Panel in Do The Hustle Llc v. Tropic Web (WIPO Case No. D2000-0624) summarized the burden of proof in respect of paragraph 4(a)(ii) of the Policy, namely that, once the Complainant has asserted that the Respondent has no rights or legitimate interests, the burden of proof shifts to the Respondent. The Respondent must then make more than an assertion that it has rights or legitimate interests and must provide factual evidence in support of its claim.
In paragraph 4(c), the Policy provides circumstances whereby the Respondent may demonstrate its rights or legitimate interests in the domain name. The Complainant in this matter has made the required assertion to which the Respondent has not reacted.
The Panel finds that the Respondent’s failure to file a response indicates a lack of legitimate interests. See Time Out Group Limited v. Mark Jacobson (WIPO Case No. D2001-0317). Furthermore, the facts of this matter are that the Respondent uses the Disputed Domain Name to promote competing services and the sale of goods in direct competition with the Complainant.
The Panel finds that Internet users will be attracted to the website linked to the domain name by the AAFES trade mark, believing that it is in some way associated with the Complainant. The Panel is of the view that the Respondent’s only interest in the Disputed Domain Name is to derive a benefit from the goodwill that attaches the Complainant’s trade mark.
The Panel finds that the Complainant has discharged its onus in proving that the Respondent does not have rights or legitimate interests in the Disputed Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith. The Complainant contends that the Respondent registered the domain names of other well-known third parties. In that regard paragraph 4(b)(ii) of the Policy provides that, where a respondent has registered a domain name in order to prevent the owner of a trade mark or service mark from reflecting the mark in a corresponding domain name, provided that it has engaged in a pattern of such conduct, the conduct constitutes evidence of the registration and use of a domain name in bad faith.
The Complainant also relies on paragraph 4(b)(iv) of the Policy, which provides that bad faith may be evidenced by use by the Respondent of a domain name with the intention to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location by creating the likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location, or the product or service on its website or location.
The Panel finds that the registration of the Respondent of domain names that incorporate the trade marks of other parties, as shown by the Complainant, constitutes an engagement in a pattern of such conduct. The Panel also finds that the Respondent is intentionally diverting Internet users to its website by exploiting the confusion and similarity between the Disputed Domain Name and the Complainants AAFES trade mark and that the Respondent is engaging in such conduct in order to reap a commercial benefit.
Consequently the Panel holds that paragraphs 4(b)(ii) and 4(b)(iv) of the Policy have been satisfied and that the Complainant has discharged its onus in showing that the Respondent has registered and uses the Disputed Domain Name in bad faith. Having found for the Complainant on the basis of paragraphs 4B(ii) and 4B(iv) of the Policy, the Panel does not consider it necessary to deal with the additional instances of bad faith.
In accordance with paragraphs 4(i) of the Policy and paragraph 15 of the Rules, the Panel finds that the Complainant has established that
i. the Disputed Domain Name is identical or confusingly similar to the Complainant’s AAFES trade mark;
ii the Respondent has no rights or legitimate interests with respect to the Disputed Domain Name; and
iii the Disputed Domain Name has been registered and is being used in bad faith.
Accordingly the Panel grants the Complainant’s request that the Disputed Domain Name <affes.com> be transferred to the Complainant.
Charné Le Roux
Dated: June 27, 2006