WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mattison Avenue Corporation d/b/a Buggies Unlimited v. Blockbuster Golf Cars, Inc./Domains by Proxy Inc.
Case No. D2007-1162
1. The Parties
The Complainant is Mattison Avenue Corporation d/b/a Buggies Unlimited, Richmond, Kentucky, United States of America, represented by Moynahan, Irvin & Smith P.S.C., United States of America.
The Respondent is Blockbuster Golf Cars, Inc./Domains by Proxy Inc., Margate, Florida, United States of America.
2. The Domain Name and Registrar
The disputed domain name, <buggieunlimtted.com>, is registered with GoDaddy .com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 3, 2007. On August 7, 2007, the Center transmitted by email to GoDaddy.com, Inc., a request for registrar verification in connection with the domain name at issue. On August 7, 2007, GoDaddy.com, Inc., transmitted by email to the Center its verification response confirming that the Respondent was listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 20, 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 August 23, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 12, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 14, 2007.
The Center appointed Carol Anne Been as the sole panelist in this matter on October 4, 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 Complainant, Mattison Avenue Corporation d/b/a Buggies Unlimited, is engaged in the sale of golf cart parts and accessories. The Complainant owns a United States service mark registration for BUGGIESUNLIMITED, Registration No. 2,509,423, issued November 20, 2001. Complainant claims use of its BUGGIES UNLIMITED mark since 1997. In addition to its registered trademark, Complainant operates a website located at the domain name, <buggiesunlimited.com>.
The Respondent registered the Domain Name, <buggieunlimtted.com>, on January 23, 2007. The Domain Name redirects users to the website, <blockbustergolfcarts.com>. That website offers golf cart products in competition with Complainant.
5. Parties’ Contentions
i. Domain Name Identical or Confusingly Similar to Complainant’s Mark
Complainant contends that it is the owner of rights in the service mark BUGGIES UNLIMITED for retail stores and distributorships of golf carts, based on its United States service mark registration and use of the mark since 1997, and its internet website and promotion of its sales of golf cart parts and accessories at <buggiesunlimited.com>. Complainant further contends that the Domain Name is virtually identical and/or confusingly similar to the Complainant’s service mark because the Domain Name differs from Complainant’s service mark only by the deletion of the letter “s” (in the word Buggies) and the replacement of the second “i” (in the word Unlimited) with the letter “t”. Complaint contends that these changes do not significantly affect the appearance or pronunciation of its mark, and reflect what is commonly referred to as “typosquatting.”
ii. Respondent’s Rights or Legitimate Interests in the Domain Name
Complainant contends that Respondent has not demonstrated any rights or legitimate interests in the Domain Name.
iii. Domain Name Registered and Used in Bad Faith
Complainant contends that Respondent has registered a confusingly similar domain name in order to divert Internet traffic away from the Complainant’s website to a competitor’s site for the purpose of monetary gain. Complainant further contends that Respondent’s typosquatting is in itself evidence of bad faith.
The Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the 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.
As Respondent has failed to submit a response to the Complaint, the Panel may choose to accept as true all of the supported allegations of the Complaint. Encyclopedia Britannica, Inc. v. null John Zuccarini, Country Walk, WIPO Case No. D2002-0487; Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009.
A. Identical or Confusingly Similar
The Complainant has established that it holds rights in the mark BUGGIESUNLIMITED and uses the mark in connection with sales of golf cart parts and accessories.
Where a Respondent employs “minor misspellings of Complainant’s mark[s] to take bad faith advantage of spelling errors made by Internet users while attempting to enter Complainant’s Internet address from the web browser”, the Respondent’s conduct falls within the definition of “typosquatting”. Typosquatting consists of taking advantage of common misspellings made by Internet users who are looking for a particular site of a particular provider of goods or services, in order to obtain some benefit therefrom. Lexar Media, Inc. v. Michael Huang, WIPO Case No. D2004-1039; VeriSign, Inc. v. Onlinemalls, WIPO Case No. D2000-1446. The Panel finds that Respondent has engaged in typosquatting as defined above.
The spelling errors used in typosquatting have been found to produce domain names that are confusingly similar to the marks which they mimic. See, e.g., Yahoo! Inc. and GeoCities v. Data Art Corp. et al., WIPO Case No. D2000-0587. Despite the spelling errors in the Domain Name <buggieunlimtted.com>, the Domain Name is sufficiently similar to Complainant’s service mark to be confusing to the public.
Accordingly, the Panel finds that the Domain Name <buggieunlimtted.com> is confusingly similar to the service mark BUGGIES UNLIMITED in which Complainant has rights.
B. Rights or Legitimate Interests
Respondent has not set forth any evidence of circumstances of the type described in Paragraph 4(c) of the Policy to demonstrate rights to and any legitimate interest in the Domain Name. Complainant’s prima facie showing that Respondent has no rights or legitimate interests in the domain name is unopposed.
Therefore, and considering the use of the domain name as described under the third element, the Administrative Panel holds that Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy states that it is evidence of bad faith when the Respondent, by using the domain name, intentionally attempts to attract, for commercial gain, internet users to its web site by creating a likelihood of confusion with the Complainant’s mark. In this case, Respondent registered and is using the similar Domain Name in a manner that is likely to capture consumers looking for Complainant and directs such consumers to a website that competes with Complainant’s website using the service mark at issue. The competing website, and therefore Respondent, is likely to benefit from the misdirection of consumers who were seeking Complainant’s site. Thus, absent any statement from Respondent to the contrary, the Panel may infer that Respondent cannot refute Complainant’s assertions and evidence of bad faith. See, e.g., The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064 (January 20, 2003).
Therefore, the Administrative Panel concludes that Respondent registered and used the Domain Name in bad faith.
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, <buggieunlimtted>, be transferred to the Complainant.
Carol Anne Been
Dated: October 18, 2007