World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kayak Software Corporation v. Little Birds Ltd, John T.

Case No. D2010-1395

1. The Parties

Complainant is Kayak Software Corporation of Concord, Massachusetts, United States of America, represented by Clock Tower Law Group, United States of America.

Respondent is Little Birds Ltd, John T. of London, United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name <wwwswoodoo.com> is registered with Dynadot, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 18, 2010. On August 18, 2010, the Center transmitted by email to Dynadot, LLC. a request for registrar verification in connection with the disputed domain name. On August 19, 2010, Dynadot, LLC. 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 August 19, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 8, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 10, 2010.

The Center appointed Michael Treis as the sole panelist in this matter on September 14, 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. The Panel subsequently found it necessary to extend the due date for decision.

4. Factual Background

Complainant owns rights in the European Community Trade Mark SWOODOO. The trademark was filed on March 9, 2007, and registered on July 31, 2008, under registration number 5746359 for the goods and services of international classes 35, 38, 39, 42 and 43.

Complainant has registered the domain name <swoodoo.com> on January 11, 2006 with the ICANN Registrar Cronon AG Berlin.

Complainant’s trademark and domain name both enjoy high popularity in relation to the offering of flight and hotel search services. This can be inferred from Annex D of the Complaint and has been verified by the Panel.

Respondent has registered the disputed domain name <wwwswoodoo.com> on July 2, 2009 with the ICANN Registrar Dynadot, LLC. This date is later than both the trademark and the Complainant’s registration of the domain name <swoodoo.com>.

The disputed domain provides Internet users with links to competitors of Complainant and other airline and travel related companies.

5. Parties’ Contentions

A. Complainant

Complainant submits that since it has launched the beta version of its website in August 2006 and that the website went live in January 2007, it not only has trademark rights based on registration but also based on use.

Complainant contends that the disputed domain name is confusingly similar to Complainant’s trademark and its domain name <swoodoo.com>, and that the disputed domain name is an example of a “missing dot” typo domain name.

Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and that there is no evidence that Respondent registered the disputed domain name for other purposes than “typo-squatting”. Specifically, Complainant asserts that there is no evidence that the disputed domain name is used in connection with a bona fide offering of goods or services, that Respondent as an individual, business, or other organization, is commonly known by the disputed domain name, nor that Respondent is making a legitimate noncommercial or fair use of the disputed domain name.

Complainant contends that the disputed domain name was registered and used in bad faith as it represents a case of “typo-squatting”, with the purpose of attracting, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s trademark and domain name.

Complainant seeks the transfer of the disputed domain name from Respondent to Complainant in accordance with paragraph 4(i) of the Policy.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

Paragraph 15(a) of the Rules states that the Panel “shall decide a complaint on the basis of the statements and documents submitted and 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 Complainant proves each of the following three elements in order to succeed with the Complaint:

i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights, and

ii) Respondent and registrant of the domain name 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.

Complainant carries the burden of proof of each of the above elements.

Respondent did not respond in these proceedings, is therefore in default and in accordance with paragraph 14(b) of the Rules, “the Panel shall draw such inferences therefrom as it considers appropriate”.

A. Identical or Confusingly Similar

The Panel considers the disputed domain <wwwswoodoo.com> confusingly similar to Complainant’s trademark. The only difference between the trademark and the disputed domain name is the addition of the prefix “www” and the gTLD identifier “.com”, both commonly known generic elements of a URL syntax. The mere addition of a generic term, such as “www” and “.com” in the matter at hand, “does nothing to reduce the potential for confusion with a registered trade-mark or service mark” (CTV Television Inc. v. ICANADA CO., WIPO Case No. D2000-1407).

Additionally, the only difference between Complainant’s domain name and the disputed domain name is the addition of the prefix “www”. The disputed domain name is a case of what is sometimes named “typo-squatting”. An Internet user wanting to enter the domain name <www.swoodoo.com> and thereby omitting the dot between “www” and “swoodoo.com” will with many browsers be automatically directed to the website under the disputed domain. This is because the browsers assume the user intentionally omitted the usual “www” and thus automatically “corrects” the domain name by prepending “www”, thus directing the user to the website “www.wwwswoodoo.com”. Such a specific “typo-squatting” practice is sometimes referred to as “missing dot typo-squatting”. In several prior decisions such a practice has been identified as a typical form of “typo-squatting” (See for example Rediff.com India Ltd. v. Laksh Internet Solutions Private Limited., WIPO Case No. D2008-0804). The Panel notes that in the cited and a number of other cases under the Policy such domain names have been considered as confusingly similar to a trademark or service mark as stipulated in paragraph 4(a)(i) of the Policy (See for example Alfa Laval AB, Alfa Laval Corporate AB v. Web Advertising, Corp, WIPO Case No. D2007-1895).

B. Rights or Legitimate Interests

The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

Paragraph 4(a)(ii) of the Policy provides three non-exclusive methods for determining whether or not Respondent has any rights or legitimate interests vested in the domain dame.

According to paragraph 4(c) of the Policy, rights or legitimate interests in the domain name may be demonstrated by showing that: (i) before any notice of this dispute, Respondent used, or demonstrably prepared to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) Respondent has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or (iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark at issue.

Respondent failed to respond and consequently to provide evidence as to whether it has rights or legitimate interests in the disputed domain name, which the Panel according to paragraph 14(b) of the Rules may consider against Respondent having rights or legitimate interests in the disputed domain name.

The Panel found no evidence which would indicate that Respondent’s use of the disputed domain name corresponds to any of the abovementioned cases in which Respondent’s rights or legitimate interests could be considered as close at hand. In particular there is no evidence that Respondent used, or demonstrably prepared to use, the disputed domain name in connection with a bona fide offering of goods or services before this dispute arose. Likewise, there is no evidence that Respondent has been known by the disputed domain name. Respondent registered the disputed domain name after Complainant registered its trademark and also after Complainant registered its domain name.

C. Registered and Used in Bad Faith

The Panel finds that Respondent registered and used the disputed domain name in bad faith.

Paragraph 4(b) of the Policy provides several, non-exhaustive indicia of bad faith registration and use of a domain name. In the present case paragraph 4(b)(iv) is of relevance. In particular, paragraph 4(b)(iv) depicts the techniques of the typical “typo-squatting” practices. Respondent’s use of the disputed domain name, which capitalizes on the automatic correction functions of the most common Internet browsers and thereby attempts to divert Internet users searching for Complainants’ product to Respondent’s website, is a bad faith commercial use. It is apparent that Respondent used the disputed domain name for this sole purpose and is thereby availing itself of the high popularity of Complainant’s trademark and domain name.

It is also likely that Respondent is profiting from this practice through traffic generation for third websites.

“Typo-squatting” is undisputedly recognized as bad faith under the Policy: “Typosquatting […] is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith” (National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011; see also Network Solutions, LLC v. Terry Wang, WIPO Case No. D2004-0675). This is even more the case in the present proceedings as Respondent’s website provides links to websites of competitors to Complainant’s goods and services.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <wwwswoodoo.com> be transferred to Complainant.

Michael Treis
Sole Panelist
Dated: October 6, 2010

 

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