WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Zappos.com, Inc. v. Jeonggon Seo
Case No. D2006-0677
1. The Parties
The Complainant is Zappos.com, Inc., Henderson, Nevada, United States of America, represented by Seán F. Heneghan, United States of America.
The Respondent is Jeonggon Seo, Chunnam, Republic of Korea.
2. The Domain Names and Registrar
The disputed domain names <zaappos.com>, <zappoa.com>, <zappod.com>, <zapppos.com> and <zsppos.com> are all registered with HANGANG Systems Inc. d/b/a Doregi.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2006. On May 31, 2006, the Center transmitted by email to HANGANG Systems Inc. d/b/a Doregi.com a request for registrar verification in connection with the domain names at issue. On June 2, 2006, HANGANG Systems Inc. d/b/a Doregi.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 notified the parties that the Complaint would initially be accepted in English, reserving the ultimate decision for the Panel, and allowing the parties to submit documents in either English or in Korean. 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 June 9, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 29, 2006. The Respondent did not submit any response. Accordingly, the Center notified the parties of the Respondent’s default on July 3, 2006.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on July 21, 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 Zappos.com, Inc., which was founded in 1999 and provides retail services via the Internet, namely at “www.zappos.com.” The Complainant has generated over US$ 200 million in sales since its inception, and was recently named as one of the “Top 50 Websites of 2005” by “Internet Retailer” magazine.
The Respondent appears to be an individual residing in Republic of Korea.
5. Parties’ Contentions
The Complainant contends that the disputed domain names are identical or confusingly similar to trademarks to which the Complainant has rights. More specifically, the Complainant asserts that it has rights in various ZAPPOS based marks, and that the domain names in dispute are nothing more than slight typo-variations of the ZAPPOS mark.
The Complainant also contends that the Respondent has no rights or legitimate interests in the subject domain names. More specifically, the Complainant asserts that the Respondent’s uses of the disputed domain names thus far cannot be viewed as a bona fide offer of goods or services. Further, there is no indication that the Respondent is commonly known by the disputed domain names.
Finally, the Complainant contends that the domain names were registered and are being used in bad faith. First, the Complainant notes that the disputed domain names were registered more than three years after the Complainant adopted and began using <zappos.com>. The disputed domain names are used to divert users to competing on-line retailers. Further, the Respondent has a history of similar bad-faith conduct.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Language of the Proceedings
The default language of the proceedings is Korean, but the Complainant submitted arguments as to why the proceedings should proceed in English, without the necessity of submitting a translated complaint in the Korean language. The Center proceeded, and advised the parties that the Center would accept the Response in either Korean or English. The parties were further advised that the ultimate decision regarding the language of the proceedings would be within the discretion of the Panel, and that the Panel may request translations from either party. The notice provided by the Center to the parties was in both English and Korean to accommodate the situations of the parties. The Respondent subsequently chose to not submit a response.
The Complainant has stated that it cannot communicate in the Korean language. On the other hand, it appears that the Respondent has sufficient ability to communicate in English. For example, the content displayed by the Respondent when the disputed domain names were discovered by the Complainant was entirely in English. The Respondent linked the disputed domain names with a domain name parking service in the United States of America (i.e. “www.domainsponsor.com”), which required the use of English to establish the relationship. Further, the Respondent has obtained domain name registrations via registrars based in the United States of America, which also would have required use of English. Finally, the Respondent has chosen to not participate in these proceedings, undermining any reasonable basis for rendering this decision in a language the Complainant cannot understand.
In view of the points noted above, the Panel finds that the principles of paragraph 11 of the Rules would be best served by accepting the filings in the preferred language of the parties, and rendering the decision in the English language. Deutsche Messe AG v. Kim Hyungho, WIPO Case No. D2003-0679.
A. Identical or Confusingly Similar
The Complainant submitted evidence of trademark registrations in the United States for various ZAPPOS based marks, including ZAPPOS.COM, which the Complainant began using since 1999, approximately three years before the Respondent obtained registration of the disputed domain names. The disputed domain names are all obvious typographical variations of ZAPPOS. For example, <zaappos.com> includes an additional “a”. <zappoa.com> replaces an “s” with an “a” (the keys for “s” and “a” are adjacent on a standard English alphabet keyboard). The disputed domain name <zappod.com> replaces an “s” with a “d” (“s” and “d” are adjacent keys). The disputed domain name <zapppos.com> includes additional “p”. Finally, <zsppos.com> replaces an “a” with an “s” (again, adjacent keys).
The slight one-character changes made by the Respondent to the Complainant’s mark ZAPPOS not only are insufficient to avoid confusing similarity, the pattern of typo variations utilized by the Respondent demonstrates that he intentionally obtained domain names that were designed to be confused with the Complainant’s trademark and website “www.zappos.com.”
For the reasons stated above, the Panel finds that the requirements of paragraph 4(a)(i) of the Policy have been established.
B. Rights or Legitimate Interests
The Respondent has not offered any assertions, much less evidence, that he has rights or legitimate interests in the disputed domain names. Further, this Panel finds the Complainant’s assertions on this point reasonable and sufficient to establish a prima facie showing in relation to this element of the Policy. This has not been refuted by the Respondent. For these reasons, the Panel finds that the requirements of paragraph 4(a)(ii) of has Policy have been established.
C. Registered and Used in Bad Faith
As discussed under Section A above, the Respondent appears to have intentionally registered five very close typographical variations of the Complainant’s trademark ZAPPOS. Also, the Respondent has in all likelihood attempted to profit from the disputed domain names by linking them to a domain name parking service, which often promotes the services of the Complainant’s competitors. Further, Respondent has a history of obtaining domain names that are slight variations of others’ trademarks – i.e. <fiatmotors.com> (FIAT MOTORS), <geocitiees.com> (GEOCITES), <neetzero.net> (NET ZERO), <oldmavy.com> (OLD NAVY), <overstoock.com> (OVERSTOCK.COM), <verisigm.com> (VERISIGN), <compsq.com> (COMPAQ), and <windowsnedia.com> (WINDOWS MEDIA). In fact, the Respondent has been found to have engaged in bad-faith registration in two prior decisions. Hewlett-Packard Company and Hewlett-Packard Development Company, L.P. v. gnic.com1, NAF 666054 (involving snapfish.net); Amazon.com, Inc. v. Seo Jeonggon, NAF 306578 (involving amazob.com).
For the reasons given above, this Panel finds that the requirements of paragraph 4(a)(iii) of the Policy have been established.
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 names <zapppos.com>, <zaappos.com>, <zappod.com>, <zappoa.com> and <zsppos.com>, be transferred to the Complainant.
Dated: August 4, 2006
1 Gnic.com is an alias used by the Respondent.