WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Jumpin Jammerz LLC v. Private Registrations Aktien Gesellschaft / Luca Mueller
Case No. D2011-0810
1. The Parties
The Complainant is Jumpin Jammerz LLC of Phoenix, Arizona, United States of America, represented by Hodgson Russ, LLP, United States of America.
The Respondent is Private Registrations Aktien Gesellschaft / Luca Mueller of Kingstown, Saint Vincent and the Grenadines; and Unterföhring, Germany, respectively
2. The Domain Name and Registrar
The disputed domain name <jumpingjammerz.com> (the “Domain Name”) is registered with About Domain Dot Com Solutions Pvt. Ltd. d/b/a www.aboutdomain.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 9, 2011. On May 10, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 17 and May 19, 2011, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 25, 2011, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 25, 2011.
The Center verified that the Complaint together with the amended 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 the Respondent of the Complaint, and the proceedings commenced on June 8, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was June 28, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 29, 2011.
The Center appointed Jon Lang as the sole panelist in this matter on July 6, 2011. 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 is the owner of the United States federally registered trademark JUMPIN JAMMERZ in International Class 25 for pajamas. The JUMPIN JAMMERZ mark was applied for on October 19, 2006, and registered on October 9, 2007, with a first use in commerce date in February 1998.
The Complainant owns the <jumpinjammerz.com> domain name. The domain name was applied for and obtained on January 22, 1998, and has been in use continuously since February 1998, in connection with the sale of footed pajamas.
The Domain Name <jumpingjammerz.com> was registered on October 15, 2008.
5. Parties’ Contentions
Identical or Confusingly Similar
The Domain Name, <jumpingjammerz.com>, is confusingly similar to Complainant’s registered JUMPIN JAMMERZ trademark, the only difference being that the Respondent has added a “g” to the word “jumpin.” this is typosquatting, “the practice of using a domain name misspelling.”
The Domain Name is almost identical, and confusingly similar to the Complainant’s federally registered trademark, and confusingly similar to the Complainant’s domain name (<jumpinjammerz.com>) that incorporates that trademark. The dominant portion of the Domain Name “jammerz”, is identical to the dominant portion of Complainant’s registered mark, JAMMERZ, a fanciful coined term with no dictionary meaning.
Rights or Legitimate Interests
The Respondent has no rights in respect of the Domain Name.
The Respondent is not and never has been an authorized distributor of the Complainant’s goods or services and has not been licensed to use the JUMPIN JAMMERZ mark or any portion of that mark. Moreover, the Complainant did not authorise the Respondent to register the Domain Name.
The Respondent is not commonly known as “Jammerz” or “Jammers.” The Domain Name <jumpingjammerz.com> is registered in the name of “Private Registrations Aktien Gesellschaft” or Luca Mueller, not “Jammerz” or “Jammers.” In contrast, the Complainant’s domain name <jumpinjammerz.com> is registered to “Jumpin Jammerz,” and “Jumpin Jammerz” is repeatedly used on the Complainant’s website as both a brand name and the company name.
Use by the Respondent of the Domain Name began long after the Complainant began using “Jumpin Jammerz” as the brand name of its footed pajamas in 1998, long after the Complainant began doing business on the Internet under that brand name in February 1998, and long after the Complainant registered JUMPIN JAMMERZ as a United States trademark on October 9, 2007.
The use of the Domain Name by the Respondent is not a legitimate noncommercial or fair use because the Domain Name is being used with the intent of diverting customers from the Complainant’s website at <jumpinjammerz.com>. Typing in the Domain Name directs the Internet user to the “jumpingjammerz.com” website, a website directly competitive to the Complainant’s “jumpinjammerz.com” website. There are no products on the Respondent’s website called “Jammerz” or “Jammers”.
The term “jammerz” in the Domain Name serves no purpose other than to improperly re-direct web traffic to the Respondent’s competing website.
The Respondent did not use, or prepare to use, the Domain Name in connection with any bona fide offering of goods or services prior to the dispute. The Respondent’s website contains the link “Footed Pajamas,” which takes the Internet user to a page with a hyperlink to the Complainant’s website, as well as hyperlinks for three competitor websites (“bigfeetpjs.com”, “beso.com/footedpajamas”, and “glimpse.com”). The Respondent’s use of a confusingly similar domain name to sell similar goods in the same commercial field (i.e. footed pajamas) cannot constitute a bona fide commercial use.
Registered and Used in Bad Faith
The registration and use of the Domain Name by the Respondent was and is in bad faith.
Paragraph 4(b)(iv) of the Policy provides that the following circumstances are evidence of bad faith:
“[B]y using the domain name, you have intentionally attempted to attract, for commercial gain, internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of your web site or location or of a product or service on your web site or location.”
This is precisely what the Respondent has done here. By using a slight misspelling of the Complainant’s trademark in the Domain Name, the Respondent has attracted web traffic to its web site at the Domain Name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires a complainant to prove that a respondent has registered a domain name which is: (i) identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith. A complainant must prove each of these three elements.
A. Identical or Confusingly Similar
The Domain Name is almost identical to the Complainant’s mark (the only difference being a “g” added to the end of “jumpin”), but not quite, so it is necessary to consider whether it is confusingly similar. Under the UDRP, this involves a comparison, on a visual or aural level, between the trademark and the domain name to determine likelihood of Internet user confusion. In order to satisfy the test, the trademark would generally need to be recognisable as such within the domain name.
The Panel is satisfied that <jumpingjammerz.com> is confusingly similar to the trademark, JUMPIN JAMMERZ on both a visual and aural comparison.
Even if one were to adopt a slightly higher burden and require, as some panels have done, a risk that Internet users may actually believe that there is a real connection between the Domain Name and the Complainant and/or its goods and services, the Complainant would succeed in showing confusing similarity. The overall impression created by the Domain Name may well give rise to the possibility that Internet users may think that the owner of the Domain Name is in fact the owner of the JUMPIN JAMMERZ mark to which it is similar, or that there is some form of association between the Respondent and the Complainant.
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy and thus this element of paragraph 4 of the Policy has been established.
B. Rights or Legitimate Interests
The Respondent has not filed any response in this proceeding.
By its allegations in the Complaint, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name and, as such, the burden of production shifts to the Respondent to come forward with appropriate arguments or evidence demonstrating such rights or legitimate interests. The Respondent has not done so and the Panel is entitled to find, given the prima facie case made out by the Complainant, that the Respondent lacks rights or legitimate interests in the Domain Name.
Nevertheless, it is perhaps appropriate to deal with rights and legitimate interests (or the absence thereof) in a little more detail.
A respondent can show it has rights to or legitimate interests in a domain name in various ways even where, as is the case here, it is not licensed by or affiliated with the complainant. For instance, it can show that it has been commonly known by the domain name or that it is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers. However, the Respondent is not known by the Domain Name and, given the nature of the website to which the Domain Name resolves (i.e. one that appears to be very much commercial in nature), it cannot be said that there is legitimate noncommercial or fair use. A respondent can also show that it is using a domain name in connection with a bona fide offering of goods or services. However, it is difficult to accept that promotion of a website to which a confusingly similar domain name resolves, through which products competing with those of a complainant can be obtained, could be a bona fide offering of goods or services.
In Drexel University v. David Brouda, WIPO Case No. D2001-0067 the panel stated that “rights or legitimate interests cannot be created where the user of the domain name at issue would not choose such a name unless he was seeking to create an impression of association with the Complainant”.
There is no evidence before this Panel that the Respondent has rights or legitimate interests in the Domain Name. The Respondent has not come forward with a Response or taken any other action to address the Complaint. The contentions of the Complainant by which it has made out a prima facie case that the Respondent has no rights or legitimate interests have not been contradicted or challenged and accordingly, the Panel finds that the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
It seems clear, given the fame of the Complainant’s trademark and the use to which the Domain Name has been put, that the Respondent must have been aware of the Complainant’s mark when the Domain Name was registered.
One way a complainant may demonstrate bad faith registration and use, is to show that a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or of products or services on it. This appears to be the case here. Accordingly, the Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the Domain Name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <jumpingjammerz.com> be transferred to the Complainant.
Dated: July 7, 2011