Complainant is Starkey Laboratories, Inc. of Eden Prairie, Minnesota, United States of America, represented by Birch, Stewart, Kolasch & Birch, LLP, United States.
Respondent is Stanley Pace of Flower Mound, Texas, United States.
The disputed domain name <starky.com> is registered with Fabulous.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 14, 2010. On May 17, 2010, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the disputed domain name. On May 18, 2010, Fabulous.com transmitted by email to the Center its verification response confirming that 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” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on May 26, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2010. The Respondent did not submit any Response. Accordingly, the Center notified Respondent's default on June 16, 2010. On June 30, 2010, Respondent submitted an email communication to the Center with arguments in reply to the Complaint.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on June 23, 2010. 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.
Complainant manufactures custom hearing instruments under the trademark STARKEY. Complainant is the owner of numerous trademark registrations incorporating the word STARKEY for use in connection with hearing aids and related retail store, repair and testing services, including the following:
|Registration No.||Mark||First Use|
|United States Reg. No. 1,042,779||STARKEY||May 4, 1967|
|United States Reg. No. 2,096,909||STARKEY.COM||Sept. 8, 1995|
|United States Reg. No. 3,380,194||STARKEY and Design||April 1, 2006|
Complainant also relies on its common law use of its STARKEY marks.
Complainant contends that the disputed domain name is virtually identical to Complainant's registered marks, that Respondent has no rights or legitimate interests in the domain name and that the domain name was registered and is being used in bad faith.
The Respondent did not reply to Complainant's contentions by the deadline, but submitted an email to the Center on June 30, 2010, contending that Starkey and Starkey are completely different surnames and words, that “starky” is a generic term meaning stiff or strong, and that he had never heard of Complainant before. Respondent also contends that his website does not currently contain pornographic material or links to competitors of Complainant. Respondent also asks for a determination of reverse domain name hijacking.
The disputed domain name is virtually identical to Complainant's registered STARKEY and STARKEY.COM marks, differing from Complainant's marks by only a single letter. It is well established that the top-level domain name is part of the Internet address and does not add source-identifying significance.
Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant's trademark.
Complainant contends that Respondent has not used or undertaken any demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. Complainant contends that Respondent has incorporated Complainant's STARKEY mark into a domain name using a minor misspelling of the mark in order to divert Internet users to Respondent's website at the disputed domain name, which appears to be a directory or pay-per-click site with links to the sites of third parties, including links to competitors of Complainant in the hearing aid field.
Complainant contends that Respondent is trading upon the goodwill associated with Complainant's STARKEY marks by diverting Internet users to Respondent's directory site for which Respondent likely receives pay-per-click revenue.
Complainant further contends that Respondent is not commonly known by the name STARKY or <starky.com> and that Respondent's name does not appear in the <starky.com> domain name. Nor does Respondent's name appear anywhere on the <starky.com> website. There is no evidence that Respondent owns any registered or common law trademarks related to the <starky.com> domain name.
There is no evidence from which the Panel could conclude that respondent has used the term “starky” in the disputed domain name to identify himself or to describe services offered through his website. Moreover, the Panel finds that the links displayed on the website associated with the disputed domain name do not appear to relate to any generic or dictionary meaning of the term “starky”. To the contrary, several of the links appear to relate directly to the Complainant's field of business, including “HEARING AIDS”, “BEST HEARING AIDS” and “DIGITAL HEARING AID”.
Respondent appears to be using the disputed domain name for the purpose of diverting Internet users from Complainant's website to Respondent's pay-per-click directory site. Such activities do not constitute bona fide use of the domain name.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent appears to have received financial benefit from “clicks” from Internet visitors to the disputed domain name. Even if the sites listed at the disputed domain name are generated by a domain “parking” company, Respondent is still responsible for the content of the site and as it has derived revenue from the confusion of Internet consumers and the inclusion of links to Complainant's competitors.
Respondent did not respond to Complainant's counsel's letter dated February 1, 2010, or to a follow up email communication of March 2, 1010, notifying Respondent that Complainant considered the registration and use of the disputed domain name to be an infringement of its trademark rights and requesting that Respondent voluntarily transfer the domain name to Complainant. Complainant's counsel's letters also referenced the links to hearing aid providers listed at Respondent's website. Respondent's failure to respond to Complainant's communications is further evidence of bad faith in maintaining the registration and use of the confusingly similar domain name.
Complainant submitted evidence with the Complaint showing that as of March 18, 2010 the disputed domain name displayed links to adult websites and that, as of April 6, 2010, the website displayed links to hearing aid related sites, including Complainant's competitors. Respondent's website continued to display such links as of the date of the writing of this decision.
In the Panel's view, the record indicates that Respondent was aware that the disputed domain name was linked to websites providing hearing aid related products and services that compete with Complainant's goods and services. Respondent has derived economic benefit by attracting Internet users to Respondent's website who are seeking Complainant's goods or services. Such use constitutes bad faith registration and use under the Policy.
The Panel finds that Respondent has registered and used the disputed 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 <starky.com> be transferred to Complainant.
Lynda J. Zadra-Symes
Dated: July 7, 2010