WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Accolo, Inc. v. Research Inc.
Case No. D2008-0057
1. The Parties
The Complainant is Accolo, Inc., Larkspur, California, United States of America, represented by The Moore Law Group, United States of America.
The Respondent is Research Inc., Beverly Hills, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <accollo.com> is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 16, 2008. On January 16, 2008, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On January 17, 2008, Moniker Online Services, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 January 23, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was February 12, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 13, 2008.
The Center appointed Richard Hill as the sole panelist in this matter on February 19, 2008. 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 has a registered trademark for the string ACCOLO and has operated a website at <accolo.com> since 2000.
The string “Accolo” is not a word in the English language.
The Respondent registered the contested domain name, which is identical to the Complainant’s mark except for addition of an extra “l”, in 2005.
The Respondent is using the contested domain name to provide a web portal which provides users with a search function as well as advertisements. This portal includes links to competitors of the Complainant.
5. Parties’ Contentions
The Complainant states that it is in the business of providing an enterprise-class recruiting solution for small and mid-size companies. It has an expert recruiting staff, a patented process and methods, and an end-to-end recruiting infrastructure that helps its clients compete with the world’s top companies for high-level talent. Its technology allows it to leverage its 580,000+ member network to generate candidates and referrals from top companies and schools. Accolo is a fast growing privately held company in the San Francisco Bay Area that was recently named number 42 on the “Inc. [magazine] 500 fastest growing private companies” list.
The Complainant registered the domain name <accolo.com> on March 28, 2000. It registered the service mark ACCOLO with the U.S. Patent Office on February 18, 2003. The Complainant uses both the ACCOLO service mark and the <accolo.com> domain name in connection with the business activities described above.
According to the Complainant, the Respondent registered the disputed domain name on June 28, 2005, more than five years after the Complainant registered its domain name. But for one letter, the Respondent’s domain name is identical to Accolo’s service mark and its registered domain name.
The Complainant alleges that, because the difference between the Complainant’s domain name and the disputed domain name is a single letter, anyone that mistypes the Complainant’s registered service mark by adding one additional letter “l” into an Internet browser’s search engine is likely to land on the Respondent’s website rather than on the Complainant’s website. Once on the Respondent’s website, the user may not realize his error because the Respondent’s website also appears to offer job recruitment, career networking and job referral services as does the Complainant. Given the Complainant’s very large membership base, the likelihood of any of its members mistyping its name into an Internet search browse engine is very high. Therefore, the likelihood of consumer confusion is significant.
According to the Complainant, the Respondent has no rights or legitimate interests in the name “accollo”. This grouping of letters does not form a word in the English language.
The Complainant states that it has found no evidence of the Respondent’s use of or demonstrable preparations to use the word “accollo” in connection with a bona fide offering of goods or services, nor that the Respondent operates a business or other organization known to the public. The Complainant believes that the Respondent registered the disputed domain name solely for the purpose of diverting Internet traffic to its site through Internet users’ inadvertent mistyping of the service mark ACCOLO into an Internet search engine.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Panel will first address the procedural issues related to the fact that the Respondent has defaulted and then analyse the evidence to determine whether the Complainant has proven, in accordance with paragraph 4(a) of the Policy that:
(i) The contested domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) The Respondent has no rights or legitimates interests in the contested domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Since the Respondent has defaulted, this Panel must first determine what the procedural implications are of a default. Should the Complainant automatically prevail, or should the Panel anyway examine the evidence and base its decision on its determination of the relevant facts and laws?
While the Policy, the Rules and the Supplemental Rules that govern these proceedings do not explicitly address this question, they do give some guidance. Notably, paragraph 4(a) of the Policy states:
“In the administrative proceeding, the Complainant must prove that each of these three elements are present.” [emphasis added]
This Panel therefore holds that it cannot grant the Complainant’s request automatically, but that it must instead examine the evidence presented to determine whether or not the Complainant has proven its case as required by the Policy.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark. The addition of an extra letter “l” does not sufficiently distinguish the disputed domain name from the Complainant’s mark for the purposes of Policy paragraph 4(a)(i). See Universal City Studios, Inc. v. HarperStephens, WIPO Case No. D2000-0716 (September 5, 2000) (finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also Reuters Ltd. v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).
B. Rights or Legitimate Interests
The Respondent is using the disputed domain name to operate a website that contains links to various commercial websites that compete with the Complainant. Given the confusing similarity in the names, and the fact that the disputed domain name is not a common, generic term, such use does not constitute a bona fide offering of goods or services under Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use under Policy paragraph 4(c)(iii). See ALPITOUR S.p.A. v. Ali Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name as the respondent is merely using the domain name to operate a website containing links to various competing commercial websites, which is neither a bona fide offering of goods or services pursuant to Policy paragraph 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy paragraph 4(c)(iii)); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 5, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites is not a use in connection with a bona fide offering of goods or services under Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy paragraph 4(c)(iii)).
The Panel holds that the Complainant has established its burden of proving this element of the Policy.
C. Registered and Used in Bad Faith
The Respondent is using the disputed domain name to operate a website that provides links to various websites offering services that compete with the Complainant’s business. The Respondent is profiting from such use through the collection of referral fees for each redirected Internet user. Such use interferes with the Complainant’s business and is therefore evidence of bad faith registration and use. See EBAY, Inc. v. MEOdesigns, WIPO Case No. D2000-1368 (December 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Moreover, as the Complainant correctly notes, the Respondent’s website is such that it will likely lead to confusion among Internet users as to the Complainant’s sponsorship of or affiliation with the resulting website. Such use is further evidence of bad faith registration and use pursuant to Policy paragraph 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum December 22, 2003) (“Registration and use of a domain name that incorporates another’s mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
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 <accollo.com> be transferred to the Complainant.
Date: March 4, 2008