WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Brownells, Inc. v. Dayanand Kamble
Case No. D2006-1598
1. The Parties
The Complainant is Brownells, Inc., Montezuma, Iowa, United States of America, represented by McKee, Voorhees & Sease P.L.C., United States of America.
The Respondent is Dayanand Kamble, Mumbai, Maharashtra, India.
2. The Domain Name and Registrar
The disputed domain name <wwwbrownells.com> is registered with Lead Networks Domains Pvt. Ltd..
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2006. On December 18, 2006, the Center transmitted by email to Lead Networks Domains Pvt. Ltd. a request for registrar verification in connection with the domain name at issue. On December 23, 2006, Lead Networks Domains Pvt. Ltd. transmitted by email to the Center its verification response informing the Center that the entity identified in the original Complaint as the Respondent was not the registrant of the disputed domain name. Lead Networks Domains Pvt. Ltd informed the Center that the correct registrant was the Respondent identified above at paragraph 1. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 8, 2007. The Center verified that the Complaint together with the amendment to 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 January 16, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 5, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 20, 2007.
The Center appointed Philip N. Argy as the sole panelist in this matter on February 26, 2007. 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 following facts are taken from the Complaint and, in the absence of a Response, are uncontested.
The Complainant sells hunting products and accessories through printed catalogues and an online store.
The Complainant owns the mark BROWNELLS registered with the United States Patent and Trademark Office as United States Trademark Registration No. 1,891,867 (the “BROWNELLS trademark”). The Complainant holds similar trademark registrations in numerous other countries, including Australia, Switzerland and the European Union.
The Complainant uses the BROWNELLS trademark prominently on the Complainant’s website “www.brownells.com”.
The disputed domain name is <wwwbrownells.com>.
5. Parties’ Contentions
The Complainant has used the BROWNELLS trademark in commerce since approximately 1946, when the Complainant was founded. The BROWNELLS mark has been subject to long and continuous use by the Complainant, and as such the Complainant submits that it has acquired common law trademark rights in the mark.
The Complainant contends that:
(1) the Respondent has chosen to use a domain name that is essentially identical to and confusingly similar to the Complainant’s domain name, company name, and trademark;
(2) the Respondent has no rights or legitimate interests in the disputed domain name; and
(3) the Respondent’s registration and use of the domain name has been in bad faith.
In support of the first contention the Complainant notes that the only difference between the Respondent’s domain name and the Complainant’s is the absence of a dot separating “www” and “brownells”. The lack of distinguishing features between the parties’ respective domain names is relied upon by the Complainant to demonstrate that the disputed domain name is essentially identical or at least confusingly similar to the BROWNELLS trademark. The Complainant further asserts that the choice of this domain name was intended by the Respondent to attract Internet users who had mistyped the exact domain name of the Complainant’s website, and as such the domain name is intended to be confusingly similar to the BROWNELLS trademark and Complainant’s domain name.
With regard to the second contention, the Complainant notes that the Respondent has never demonstrated any rights or legitimate interests in its domain name. The Respondent has never been authorised to use the BROWNELLS trademark by the Complainant, it has no association with the Complainant, and it has not ever been known by the term “Brownells”, “wwwbrownells” or similar. No goods or services are offered via the disputed domain name. The disputed domain name appears to generate “click-through” revenue for the Respondent by attracting Internet users and misleading them into believing they are visiting the Complainant’s website. The Complainant submits that this is not legitimate non-commercial or fair use.
Finally, in support of the Complainant’s third contention, the Complainant asserts that the only apparent purpose of the disputed domain name is to generate “click-through” traffic revenue for the Respondent. The Respondent’s domain name links to various companies’ hunting accessories-related websites, including competitors of the Complainant. The products are the same as those sold by the Complainant and as such are directed towards the same consumers as the Complainant. The Respondent derives commercial gain through affiliate sponsors and advertising by using the BROWNELLS trademark. The Complainant contends that the Respondent knew or should have known of the existence of the BROWNELLS trademark when it registered the domain; and asserts that the Respondent intended to cause confusion by using its goodwill. The Complainant asserts that the Respondent’s intention to benefit from the Complainant’s goodwill and rights in the BROWNELLS trademark is evidence of the Respondent’s bad faith.
The Complainant requests that the Panel determine to transfer the registration of the disputed domain name to the Complainant.
The Respondent did not file a Response within time or at all.
6. Discussion and Findings
In order for the disputed domain name to be transferred to the Complainant, the Complainant must have demonstrated, in accordance with paragraph 4 (a) of the Policy, that:
1. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
2. the Respondent has no rights or legitimate interests in respect of the domain name; and
3. the Respondent has registered and used the disputed domain name in bad faith.
A. Identical or Confusingly Similar
The Complainant owns the BROWNELLS trademark identified in Section 4 of this decision. Evidence of this was attached at Annex 5 of the Complaint. Furthermore, the Complainant has been using the mark BROWNELLS since approximately 1946, when the Company was founded. The Company trades in hunting equipment and accessories (Anexure 4 of the Complaint).
The Panel is totally satisfied that the Complainant owns the trademark BROWNELLS.
The single difference between the Complainant’s domain name and the disputed domain name is the “www” that precedes “brownells”. There is no other distinguishing feature of the Respondent’s domain name which is capable of differentiating it from the Complainant’s domain name.
The disputed domain name is similar, but not identical to, the domain name registered by the Complainant, which reflects its rights in its mark BROWNELLS.
In Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556 the Panel held that the Respondent had intentionally misspelled the Complainant’s trademark in order to attract Internet users who had mistyped the Complainant’s URL (“www.volvo.com”) as “www.vlovo.com” and derived revenue as a result. This practice is known as “typosquatting” and has been widely condemned (see Nasdaq Stock Market, Inc. v. Nsdaq.com, Nasdq.com and Nasaq.com, WIPO Case No. D2001-1492). The Panel held that the domain name <vlovo.com> was confusingly similar to the Complainant’s word mark VOLVO.
Whilst no longer mandatory with most modern browser versions with gTLDs, the use of “www.” in front of a domain name is invariable global practice when typing a URL into a browser. Historically it was required to designate the World Wide Web part of the Internet, and the vast majority of domain name registrants still cite their domain name prefaced by “www.”.
In the present case, the Internet user would merely have to omit a single dot, rather than misspell, the trademark element of the domain name. This case is even stronger than Volvo. The Panel finds that the domain name <wwwbrownells.com> is confusingly similar to the Complainant’s BROWNELLS trademark and that paragraph 4(a)(i) of the Policy is made out.
B. Rights or Legitimate Interests
Absent a Response, there is no evidence that the Respondent has any rights or a legitimate interest in the disputed domain name.
The Panel notes the Complainant’s assurances that the Respondent has no legitimate business with the Complainant, nor any history of such business. The Panel notes also that the sole purpose of the website reached by the disputed domain is to divert Internet users to sponsored websites which trade in the goods and services offered by the Complainant. In fact, in some cases the sponsored websites direct Internet users to competitors of the Complainant. The Respondent appears to derive financial profit from diverting Internet users to these sites.
Paragraph 4(c) of the Policy outlines three circumstances which a Respondent may rely on to demonstrate rights or legitimate interests in the domain name for the purposes of Paragraph 4(a)(ii) of the Policy. First, the Respondent may demonstrate the use of the domain name in connection with the bona fide offering of goods or services. In this case, there is no bona fide offering of goods or services via the domain name. Rather, the content of the website is directed at diverting Internet users to sponsored websites of organisations competitive with the Complainant. The first set of circumstances is not made out.
Secondly, the Respondent may demonstrate a legitimate interest if it can prove it has been commonly known by the domain name. There is no evidence that this is the case.
Finally, the Respondent may demonstrate rights or interest if it is making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. There is evidence that the Respondent derives commercial gain from misleadingly diverting consumers. This set of circumstances has not been proved.
Consequently, in the absence of contrary evidence, the Panel concludes that the Respondent has no rights or legitimate interest in the domain name <wwwbrownells.com>.
C. Registered and Used in Bad Faith
The Panel finds that the Respondent was aware, at the time the disputed domain name was registered, that the Complainant held exclusive rights in the BROWNELLS trademark. There is no alternative conclusion possible in typosquatting cases.
As noted under Section 5 A “Identical or Confusingly Similar”, the Respondent is deriving financial benefit from diverting Internet users, who comprise the clients of the Complainant, to sponsored websites trading in similar goods as the Complainant. The Respondent is misleading consumers and luring them to other websites which appear at first glance to be associated with that of the Complainant and deal in the same kinds of goods as the Complainant. The Respondent is deriving financial gain from the Complainant’s BROWNELLS trademark.
The Panel readily finds that the Respondent registered and is using the disputed domain name in bad faith.
The Complainant has proved all three elements of paragraph 4(a) of the Policy.
In accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <wwwbrownells.com> be transferred to the Complainant.
Philip N. Argy
Dated: March 12, 2007