WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
InfoSpace, Inc. v. Telos Chamir
Case No. D2011-1256
1. The Parties
The Complainant is InfoSpace, Inc. of Bellevue, United States of America (the “U.S.A.”), represented by Stokes Lawrence, U.S.A..
The Respondent is Telos Chamir of Hong Kong, China.
2. The Domain Name and Registrar
The disputed domain name <web-crawler.info> is registered with Key-Systems GmbH.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 22, 2011. On July 22, 2011, the Center transmitted by email to Key-Systems GmbH a request for registrar verification in connection with the disputed domain name. On July 25, 2011, Key-Systems GmbH 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” 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”).
On August 4, 2011, in accordance with the information provided by the Registrar, the Center informed the parties that the specific language of the registration agreement as used by the registrant for each domain name was German. Therefore, on August 4, 2011, the Complainant requested the Center for English to be the language of the proceedings. The Respondent did not provide any comments in this regard.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint in both English and German, and the proceedings commenced on August 5, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was August 25, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 26, 2011.
The Center appointed Christian Schalk as the sole panelist in this matter on September 2, 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.
The Panel has reviewed the record and confirms the Complaint’s compliance with the formal requirements. The Complaint was properly notified to the Respondent in accordance with paragraph 2(b) of the Rules.
The Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties.
4. Factual Background
The Complainant is a provider of search engines and a developer of popular Internet search tools and technologies. The Complainant is owner of trademark rights in the term WEBCRAWLER in the U.S.A., in the European Union and in Brazil. The Complainant owns among others the following trademark registrations:
U.S. trademark registration No. 2,007,916 for WEBCRAWLER, filing date 14.07.1995, covering goods and services in Int. Class 42;
U.S. trademark registration No. 3,497,997 for WEBCRAWLER, filing date 08.02.2007, covering goods and services in Int. Classes 35 and 38;
European Community trademark registration no. 425116 for WEBCRAWLER, filing date 20.11.1996, covering goods and services in Int. Classes 9, 38, 41 and 42;
Brazilian trademark registration No. 819492523 for WEBCRAWLER, filing date 30.09.1996, covering goods and services in Int. Class 41.
The Complainant owns also the domain names <webcrawler.com> and <mywebcrawler.com> which the Complainant uses for promoting its services through the Internet.
The Respondent registered the disputed domain name on March 6, 2011. The disputed domain name appears to resolve to a website where it is written in big letters: “www.welcome to web-crawler.info”. Below this headline there are on the left side several links resolving to web services apparently provided by a company called “Spider”. Furthermore, in the center of this website, there is a list of several links to different web search providers, for instance:
Free Download Harvest Data today Web Crawler
“Advertise Your Website
Cost-Effective Way to Get People to Your Site & More. Free Sign-Up!
“Tech Manager Seattle
Project Manager, QA for marketing & digital media tech products.
Official web site for AMITIZIA. Get the product profile and more..
On March 31, 2011, the Complainant sent a cease and desist letter to the Respondent. The Respondent was requested to cease all use of the disputed domain name and to take the necessary steps to transfer the disputed domain name to the Complainant. The Respondent has not replied to this letter.
5. Parties’ Contentions
The Complainant alleges that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant argues that the disputed domain name wholly incorporates the Complainant’s well-known WEBCRAWLER mark and is substantially identical to and/or confusingly similar to the Complainant’s <webcrawler.com> and <mywebcrawler.com> domain names. The Complainant cites in this context La Quinta Worldwide L.L.C. v. Private Registrations Aktien Gesellschaft, WIPO Case No. D2010-1442 to support its argument that the disputed domain name, which incorporates the Complainant’s registered trademark with the addition of the “.info” designation, is confusingly similar to the Complainant’s registered trademarks. The Complainant argues further that the addition of a hyphen and the “.info” suffix does nothing to dispel a connection with its WEBCRAWLER trademark. In this context, the Complainant explains that the addition of the term “.info” to its WEBCRAWLER trademark appears to suggest an enhanced or special service connected with the Complainant, and does nothing to exacerbate the confusion between the Complainant and the Respondent. Furthermore, the Complainant believes that the addition of a hyphen does not detract from the fact that the dominant feature of the disputed domain name is the term “webcrawler”.
The Complainant alleges also that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
In this context, the Complainant explains its WEBCRAWLER mark is in use since at least as early as 1994 and in connection with the <webcrawler.com> and <mywebcrawler.com> domain names since 1999 and 1998 respectively while the Respondent registered the disputed domain name more than 17 years after the Complainant began using its WEBCRAWLER mark. Therefore, the Complainant believes that the Respondent does not own any registered or common law marks containing the term “webcrawler”, nor it has made any legitimate use of, or entered into any preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The Complainant argues further, that the Respondent has never been known by or operated a business under the “webcrawler” name and that it has no trademark rights in this term. In this context, the Complainant explains that the Respondent has selected the disputed domain name for the purpose of generating business through “click through” advertising and diverting traffic to a commercial website by capitalizing on the public’s familiarity with the Complainant’s well-known WEBCRAWLER trademark. The Complainant concludes, therefore, that the use of the disputed domain name which is confusingly similar with the Complainant’s trademarks and which diverts Internet users to a commercial website is neither a bona fide offering of goods and services nor a legitimate noncommercial fair use. The Complainant cites in this context Amazon.com, Inc. v. Applied Business Solutions, WIPO Case No. D2003-0309 and Owens Corning v. NA, WIPO Case No. D2007-1143 to support its arguments.
Furthermore, the Complainant alleges that the disputed domain name was registered and is being used in bad faith by the Respondent. The Complainant argues that the Respondent appears to be using the disputed domain name to generate traffic for the purpose of generating revenues from advertising. The Complainant explains that the disputed domain name resolves to a website which, because of its targeted commercial links, appears, in part, intended to attract a similar target audience as the Complainant’s prospective customers. The Complainant cites in this context among others Edmunds.com v. Ult. Search, Inc., WIPO Case No. D2001-1319. The Complainant argues further that by this behavior, Internet users who are seeking the Complainant, are linked to a website containing a series of links to competitive commercial sites, presumably for referral fees. In this context, the Complainant cites Société Nationale des Chemins de Fer Francais (SNCF) v. Comdot Internet Services Private Limited./PrivacyProtect, WIPO Case No. D2008-0025 and The American Automobile Association, Inc. v. Above.com Domain Privacy / Transure Enterprise Ltd, WIPO Case No. D2010-0565 to support its findings.
In the Complainant’s view it is irrelevant whether the Respondent itself posted the parked page or whether the Respondent or the registrar receives the click-through revenue generated by these actions. The Complainant emphasizes for this reason, that the Respondent has no relationship with the Complainant and that the Respondent is not authorized to use the Complainant’s trademarks or any variations thereof.
Finally, the Complainant concludes, that the Respondent, by featuring pay per click links, has intentionally attempted to attract users to its website for commercial gain, by creating likelihood of confusion with the Complainant’s WEBCRAWLER mark.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law it deems applicable (paragraph 15(a) of the Rules). Pursuant to paragraph 4(a) of the Policy, a domain name can be transferred only where the complainant has proven that each of the following three elements is present:
(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 far as the language is concerned in which the decision of this present case should be written, the Complainant cannot automatically draw its conclusion that the decision has to be written in English from Section 12, Paragraph 5 of the Registrar’s terms and conditions which say, that “both the English and German version of these Terms and Conditions are valid”. It says also that “in case of doubt, the German Terms and Conditions will be decisive”. In the Panel’s view, the sense of this clause is to establish rules on the choice of the language in conflicts between the Registrar and the Respondent concerning the registration agreement between both parties. However, this present case is in first line a conflict between the Complainant and the Respondent, which is governed by the Policy, the Rules and the Supplemental Rules. Therefore, the Panel has to decide on the circumstances of this present case. The Center has accepted the Complaint in English and has invited the Respondent to file its Response either in English or in German and all the communications from the Center to the parties have been submitted in English and German. However, the Respondent has not filed a response. Furthermore, the Respondent apparently lives in Hong Kong where English is an official language. Thus the Respondent should have sufficient capacities in communicating and in understanding the English language and therefore, the Panel decides to write this decision in English.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has established trademark rights in the term “webcrawler” and that the disputed domain name is nearly identical to such trademark rights.
The disputed domain name incorporates completely the term “webcrawler”. The only difference is that this term has been separated in two parts, in “”web” and “crawler” which are linked by a hyphen. However, this difference cannot be noted if both terms (with and without hyphen) would be pronounced even one after the other. Also from a visual point of view, one would have to compare very carefully both terms to see this very minor difference.
Therefore, this Panel shares the view of the panels in several previous cases that such a minor alteration is generally not a distinguishing feature and consequently, the disputed domain name is confusingly similar to the Complainant’s trademarks (see, for instance, National City Corporation v. MH Networks LLC, WIPO Case No. D2004-0128 for the domain name <national-city-mortgage.com>; Transamerica Corp. v. Inglewood Computer Services, WIPO Case No. D2000-0690 for the domain name <trans-america.com>; Fort Knox National Company v. Ekaterina Phillipova, WIPO Case No. D2004-0281 for the domain name <true-pay.com>).
Moreover, in the Panel’s view, the registration of such a type of domain name by the Respondent is also a clear case of “typosquatting” because the Respondent takes advantage of possible misspellings by Internet users who are unaware of the fact that they have typed the Complainant’s trademark incorrectly in the Internet browser and get directed to the Respondent’s website.
In addition, the “.info” suffix in the disputed domain name does not affect the determination that the disputed domain name is nearly identical with WEBCRAWLER in which the Complainant has trademark rights (see also: Compagnie Générale des Etablissements Michelin v. Trending, WIPO Case No. D2010-0484; Köstrizer Schwarzbierbrauerei v. Macros-Telekom Corp., WIPO Case No. D2001-0936 and Laboratoire Pharmafarm (SAS) v. M. Sivaramakrishan, WIPO Case No. D2001-0615 and cases cited therein).
For all these reasons the Panel finds that the Complainant has fulfilled the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
According to the material brought before the Panel, and in the absence of a Response to the Complaint, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name for the reasons mentioned below.
The Respondent has not provided any evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the disputed domain name. Especially, there is no evidence that the Respondent is commonly known by the disputed domain name. The Respondent is also neither affiliated with the Complainant nor has the Complainant granted the Respondent a license to use its trademark.
The Respondent has also not rebutted the Complainant’s allegations on the Respondent’s lack of rights and legitimate interests and has not provided the Panel with any explanations as to whether this is the case or not or whether there are indeed legitimate reasons for the choice of the disputed domain name.
On the contrary, it appears to the Panel that the Respondent is unfairly capitalizing on the reputation and goodwill established by the Complainant (see, e.g. Edmunds.com, Inc. v. Digi Real Estate Foundation, WIPO Case No. D2006-1043; Microsoft Corporation v. Global Net 2000, Inc., WIPO Case No. D2000-0554) by directing the disputed domain name to a website which provides links to services for which the Complainant’s potential customers usually look for when they search on the Complainant’s services in the Internet and that such links direct Internet users in addition also to websites where the Complainant’s competitors offer their services.
Furthermore, given the circumstances of the present case, there are enough reasons for the Panel to assume that the Respondent registered the disputed domain name also in order to take advantage of the Complainant’s reputation for generating business through so-called “click through” advertising. There, the Respondent gets parts of the revenue which the provider of sponsored links receive when Internet users click on such links displayed on the website which the Respondent has linked with the disputed domain name. All this does not constitute a bona fide offering of goods and services. It is the same with the fact that the Respondent continued this behaviour even after the Complainant had sent a cease and desist letter to it.
The Panel has therefore serious doubts as to the legitimacy of the Respondent’s registration of the disputed domain name, and finds that the requirement of paragraph 4(a)(ii) of the Policy is also met.
C. Registered and Used in Bad Faith
The Complainant contends that the Respondent registered and is using the disputed domain name in bad faith in violation of the Policy, paragraph 4(a)(iii). The Policy, paragraph 4(b) sets forth four non-exclusive circumstances which are evidence of bad faith registration and use of domain names:
(1) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(2) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(3) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(4) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location of a product.
According to the material brought before the Panel, the Panel finds that the disputed domain name has been registered and used by the Respondent in bad faith in accordance with paragraph 4(b)(iv) of the Policy for the reasons mentioned below.
It is a principle considered under prior UDRP decisions (see, for instance, Carolina Herrera, Ltd. v. Alberto Rincon Garcia, WIPO Case No. D2002-0806; Six Continents Hotels, Inc. v. Seweryn Nowak, WIPO Case No. D2003-0022) and under the Policy (see paragraph 2), that a domain name registrant represents and warrants to the concerned registrar that, to its knowledge the registration of the domain name will not infringe the rights of any third party.
Given the fact that the Complainant is active in the field of Internet services, that the Respondent has linked the disputed domain name to a website offering very similar if not identical services and that Complainant’s WEWBCRAWLER trademark is also mentioned there, the Panel finds that the Respondent must have been aware of the Complainant’s trademark when it registered the disputed domain name (see, Liseberg AB v. Administration Local Manage Technical, WIPO Case No. D2003-0864). Therefore, the Panel believes that the Respondent registered the disputed domain name in bad faith.
The Panel finds further, that the Respondent is also using the disputed domain name in bad faith.
The Respondent registered the disputed domain name, which is nearly identical with the Complainant’s trademark. There is no difference in the pronunciation and there are also very minor differences in their visual impressions if both terms would be compared side by side. Furthermore, it is not unusual that companies uses their trademarks as domain names which contain a hyphen in order to make sure that common typing errors will not prevent Internet users from getting directed to their websites. Therefore, it is very likely that Internet users mistyping the Complainant’s trademark in the Internet browser field will not notice this error. In the assumption that they reach the Complainant’s website, they get directed to a website which provides links to Internet companies which offer similar if not identical services to the Complainant ones. Internet users may believe that the website to which the disputed domain name resolves, is either of the Complainant itself or somehow associated with it. They may also believe that they buy services from the Complainant or companies, which somehow belong to the Complainant while in reality, they are purchasing services from the Complainant competitors. Therefore, the Panel is convinced that the Respondent registered and used the disputed domain name to take advantage of such typical typing errors in order to direct innocent Internet users to other websites where they get confused over the true identity of the website owner and the services offered therein. Such “typosquatting” or registering a domain name that is a common misspelling of a mark in which a party has rights has often been recognized as evidence of bad faith registration per se. (see e.g. Edmunds.com, Inc. v. Digi Real Estate Foundation, WIPO Case No. D2006-1043; Paragon Gifts, Inc. v. Domain.Contact, WIPO Case No. D2004-0107 (citing National Association of Professional Baseball Leagues, d/b/a Minor League Baseball v. Zuccarini, WIPO Case No. D2002-1011); ESPN, Inc. v. XC2, WIPO Case No. D2005-0444 (finding that the practice of “typosquatting”, of itself, is evidence of the bad faith registration of a domain name).
Furthermore, given the circumstances of this present case, there are sufficient reasons for the Panel to assume that also the Respondent takes commercial advantage if Internet users click on the links displayed on the website which is linked with the disputed domain name because it receives revenue resulting from such pay-per-click or click-through activities of users who follow such links (paragraph 4(b)(iv) of the Policy),
Therefore, the Panel finds that the Respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of its website.
In the Panel’s opinion, another indication for bad faith use in the present circumstances is that the Respondent has not responded to the Complainant after receipt of the Complainant’s cease and desist letter but continued its behaviour for several months.
Given all facts and circumstances of this case, the Panel finds therefore, that the disputed domain name has been registered and is being used 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 <web-crawler.info> be transferred to the Complainant.
Dated: September 17, 2011