WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
HYDAC Technology GmbH v. Click Consulting Ltd.
Case No. D2006-1364
1. The Parties
The Complainant is HYDAC Technology GmbH, Sulzbach/Saar, Germany, represented by Rospatt Osten Pross, Germany.
The Respondent is Click Consulting Ltd., Kings Court, Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <hydak.com> is registered with DomainDoorman, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 26, 2006. On October 27, 2006, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On November 2, 2006, DomainDoorman, LLC 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 November 9, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 29, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 30, 2006.
The Center appointed Michael A. Albert as the sole panelist in this matter on December 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
As Respondent failed to respond to Complainant’s contentions, the Panel finds that the assertions of fact in the Complaint are undisputed. Complainant is a fluid technology company that sells filters and filter elements for the use as machine components, valves for use as parts of machines and vehicles, hydraulic pressure and conveyance pumps, and electro-hydraulic power supplies and testing equipment under the mark HYDAC. As part of its business, Complainant has secured a variety of United States of America and international trademark registrations for the HYDAC mark for use with the above mentioned products, which date from years to decades before Respondent registered the disputed domain name. Complainant has appended to its Complaint evidence of its trademark registrations in the HYDAC mark.
Respondent registered the disputed domain name, <hydak.com>, on June 2, 2006. Since that time, the domain name resolves to a web page that contains pay-per-click advertising links. A number of these advertising links resolve to the web pages of companies that are direct competitors of Complainant.
5. Parties’ Contentions
Complainant contends that the disputed domain name is phonetically identical and visually confusingly similar to its registered HYDAC mark. Complainant contends that it has rights in the mark as a result of its registrations of the mark, and of its use of the mark in commerce in various countries.
Complainant also argues that Respondent has no rights or legitimate interests in the domain name. There is no evidence of any bona fide offering of goods or services under the domain name <hydak.com>. Respondent is not making legitimate non-commercial or fair use of the domain name. Instead, Respondent is commonly known to look for domain names that were previously deleted or dropped by other registrants. Complainant has no knowledge that Respondent has any prior trademark or service mark rights in the mark HYDAK.
Finally, Complainant contends that Respondent registered and is using the domain name in bad faith. The domain name was acquired and is used primarily for the purpose of renting “sponsored links” to competitors of Complainant and dealers of products competing with Complainant’s products. In particular, the domain name is used to divert customers looking for original products of Complainant, thereby disrupting Complainant’s business. Moreover, the “related categories” on <hydak.com> show that Respondent’s use targets customers in the fields of automation, pneumatics, hydraulics and valves. These categories of prospective customers are identical to those looking for the original products of Complainant. The “related categories” section of the web page has even shown the explicit name of Complainant, “Hydac,” on occasion.
The Respondent did not reply to the Complainant’s 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.”
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:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel concludes, first, that Complainant has sufficiently shown that it has rights in its HYDAC mark, including through its various trademark registrations and use.
The domain name incorporates the entirety of Complainant’s HYDAC mark, with the only difference being a change of the last letter from a “c” to a “k.” The two words are thus homonyms, which suggests that Internet users looking for information on Complainant might be led to Respondent’s web page by mistake. Such “typo-squatting” does not prevent, and indeed may frequently support, a finding of confusing similarity. See Société des Hôtels Méridien v. Modern Ltd. - Cayman Web Dev., WIPO Case No. D2004-0321 (describing typo-squatting as “a practice in which a respondent registers domain names with slight misspellings of a complainant’s mark in order to divert Internet traffic,” and finding confusing similarity where the complainant’s mark and disputed domain name were homonyms with only one letter of difference). The only other addition is the “.com” top level domain name. Top level domains are irrelevant to a finding that a domain name and trademark are identical. See Pomellato S.p.A v. Tonetti, WIPO Case No. D2000-0493 (addition of a generic top-level domain is “not relevant” to a determination of similarity, as it is required, necessary, and functional).
The Panel finds that Complainant has shown that the domain name is identical or confusingly similar to its HYDAC mark under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Respondent does not appear to have any trademark or other intellectual property rights in the domain name. First, Respondent failed to file a Response, which can fact suggest, in appropriate circumstances, that a respondent lacks rights or legitimate interests in that domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., WIPO Case No. D2000-1221 (finding that respondent’s failure to respond in a UDRP proceeding can be construed, in appropriate circumstances, as an admission that it has no legitimate interest in the contested domain names). Second, as a result of not filing a response, Respondent has failed to contradict Complainant’s evidence that Respondent has not demonstrated any of the factors under Policy Para. 4(c). There is no evidence that Respondent is commonly known by the name “hydak.” See RMO, Inc. v. Burbridge, FA96949 (Nat. Arb. Forum May 16, 2001) (interpreting paragraph 4(c)(ii) of the Policy “to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail”); Gallup Inc. v. Amish Country Store, FA96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that when a respondent was not known by a mark it did not have rights in a domain name incorporating that mark); Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403 (panel held that a lack of rights or legitimate interest could be found where (1) respondent is not a licensee of complainant; (2) complainant’s rights in its related trademarks precede respondent’s registration of the contested domain name; and (3) respondent is not commonly known by the domain name in question.) All of these factors apply here.
There is also no evidence that Respondent has made any use of the domain name in connection with a bona fide offering of goods or services, or as part of a noncommercial or fair use. Respondent’s strategy appears to be for Internet searchers who are looking for information on Complainant or its products to be pointed to Respondent’s unrelated web page, where they may click on one of the paid advertising links, many of which are links to direct competitors of Complainant. Such a strategy cannot be considered a right or legitimate interest in the domain name. See RX America, LLC. v. Smith, WIPO Case No. D2005-0540 (redirection of domain name to pay-per-click web site not a legitimate right or interest); Societé Air France v. Virtual Dates, Inc., WIPO Case No. D2005-0168 (same). Furthermore, the linking to web sites of competitors simply cannot constitute a bona fide offering of services. See Am. Online, Inc. v. Fu, WIPO Case No. D2000-1374 (“It would be unconscionable to find … a bona fide offering of services in a respondent’s operation of [a] web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business”).
The Panel finds that Respondent has no rights or legitimate interests in the domain name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered and is used in bad faith. Given Complainant’s long-established use of the HYDAC mark, and Respondent’s use of the domain name to provide a number of paid links that connect to competitors’ web sites, the Panel finds that Respondent was probably aware of Complainant and its activities when it registered the domain name. See Wal-Mart Stores, Inc. v. Jeff Milchen, WIPO Case No. D2005-0130, and cases cited (respondent’s knowledge of complainant’s mark at the time of registration of the domain name suggests bad faith).
Furthermore, the fact that the domain name includes the entire HYDAC mark (with only a replacement of one letter with a similar sounding letter) also supports a finding of bad faith. See id.; Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028; Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
In addition, Respondent is using a widely known trademark (which is also Complainant’s company name) to attract visitors to the web sites of direct competitors. This strongly suggests bad faith. See Lilly ICOS LLC v. Emilia Garcia, WIPO Case No. D2005-0031 (redirection to website of competitor offering generic version of complainant’s drug evidence of bad faith); Société des Hôtels Méridien, supra (“The question of whether use of a domain name is done in bad faith has been considered especially clear if the site contains links to websites belonging to competitors of the Complainant.”).
Finally, “the mere act of typo-squatting has often been recognized as evidence of bad faith registration and use.” Id. See also Paragon Gifts, Inc. v. Domain Contact, WIPO Case No. D2004-0107; National Association of Professional Baseball Leagues, d/b/a Minor League Baseball v. Zuccarini, WIPO Case No. D2002-1011; and cases cited.
The Panel finds that Respondent has registered and used the disputed domain name in bad faith under paragraph 4(a)(iii) of the Policy.
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 <hydak.com> be transferred to the Complainant.
Michael A. Albert
Dated: December 27, 2006