WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
M.F.H. Fejlesztõ Korlátolt Felelõsségû v. Galib Gahramanov
Case No. D2012-1249
1. The Parties
The Complainant is M.F.H. Fejlesztõ Korlátolt Felelõsségû of Budapest, Hungary, represented by Novagraaf Nederland B.V., Netherlands.
The Respondent is Galib Gahramanov of Baku, Azerbaijan.
2. The Domain Name and Registrar
The Domain Name <initimissimi.com> is registered with Key-Systems GmbH dba domaindiscount24.com (the “Registrar”).
3. Procedural History
On June 6, 2012, the Complainant filed a Complaint with the WIPO Arbitration and Mediation Center (the “Center”) against the domain name <intimisimmi.com> which was registered by “whoisproxy.com”. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name <intimisimmi.com>. On June 8, 2012 the Complainant notified the Center that it had discovered that the domain name <initimissimi.com> was also registered by “whoisproxy.com”, and requested leave to amend its complaint to include both domain names in its Complaint. The Center subsequently transmitted by email to the Registrar a request for registrar verification in connection with the domain name <initimissimi.com>. The Registrar informed the Center that the domain names <intimisimmi.com> and <initimissimi.com> were registered by different underlying registrants. The Center sent an email communication to the Complainant on June 14, 2012 providing the registrant and contact information disclosed by the Registrar for the domain names, and inviting the Complainant to submit an amendment to the Complaint and evidence to demonstrate that both registrants are in fact the same entity or to file a separate Complaint. The Complainant filed an additional Complaint for the domain name <initimissimi.com> on June 19, 2012. On the same date, the Registrar confirmed that the Domain Name was locked against automated deletions. The Complainant renewed the disputed domain name so that the administrative procedure could continue.
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 the Respondent of the Complaint, and the proceedings commenced on July 6, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was July 26, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 1, 2012.
The Center appointed Jon Lang as the sole panelist in this matter on August 10, 2012. 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 several trademark registrations for INTIMISSIMI for, inter alia, underwear and nightwear in several countries throughout the world for instance, Community Trade Mark Registration No. 001978808, with a registration date of April 2, 2002 and U.S. Registration No. 2712606, with a registration date of May 6, 2003.
The Complainant has a number of websites, the main being “www.intimissimi.com” which was registered on July 27, 1998. The Complainant has a number of other domain names containing the mark INTIMISSIMI.
The Complainant is part of the INTIMISSIMI franchise network which has more than 1020 shops in 23 different countries around the world.
The Respondent registered the Domain Name <initimissimi.com> on June 26, 2011. Not much else is known about the Respondent as he did not take part in these proceedings.
5. Parties’ Contentions
The brand name INTIMISSIMI was created in 1986 and has become a market leader in underwear in Europe.
The Complainant has spent considerable time, effort and money since 1986 advertising and promoting its clothing using the mark INTIMISSIMI.
The brand INTIMISSIMI is well-known in many countries and embodies substantial goodwill.
The Domain Name is confusingly similar to the INTIMISSIMI mark
The Domain Name is phonetically, visually and conceptually confusingly similar to the Complainant’s INTIMISSIMI mark, the difference being only that an additional letter ‘i’ has been added into the Domain Name between the second (“n”) and third (”t”) letters of the mark so that it reads ”initimissimi”. This constitutes typosquating , wrongful conduct which takes advantage of errors by Internet users when typing domain names into their browser location bar.
The Respondent has no rights or legitimate interests in respect of the Domain Name
Modification of the Complainant’s mark could not serve any legitimate interest and is only aimed at exploiting the reputation of the mark.
The Domain Name links directly to a parking webpage on which appear links to other online shops for clothing and lingerie, the very products for which the Complainant uses and has registered the INTIMISSIMI mark. This cannot constitute bona fide use given that it is misleading consumers who may think that the site is linked in some way with the INTIMISSIMI mark. The use is objectionable for reasons of consumer protection too, given the potential for the “bait and switch” of consumers looking for products of the Complainant but who are directed to similar products of others.
The Domain Name was registered and is being used in bad faith
The Domain Name is being used for no purpose other than as described earlier.
The Domain Name was only chosen because INTIMISSIMI is a well-known mark and therefore attractive for diverting Internet users thereby generating business for the Respondent. The Respondent is intentionally creating "initial interest confusion" for commercial gain.
The diversion of Internet traffic also disrupts the Complainant’s business.
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;
(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 Respondent has deliberately introduced a very slight deviation (one letter) to the Complainant’s mark and, given the use made of the Domain Name, appears to have done so without legitimate reason and for commercial gain. There is little doubt that this constitutes typosquatting, a practice designed to take wrongful advantage of possible misspellings of a third party trademark. Not every domain name that happens to contain a slight deviation in the spelling of a trademark of another will amount to typosquatting. However where, as here, there seems little reason for the registration of the Domain Name other than to take advantage of the Complainant’s somewhat unique mark and Internet users’ potential to misspell that mark when looking for the genuine online presence of the Complainant, a finding of typosquatting is inevitable. As previous panels have held, a finding of typosquatting renders a domain name confusingly similar.
Moreover, the Domain Name is visually very similar to the INTIMISSIMI trademark, heightening the likelihood of confusion in that the Domain Name, once typed, will look to the Internet user like the correct online location of the Complainant who will therefore be less likely to double check his or her spelling.
The Domain Name is confusingly similar to the Complainant’s INTIMISSIMI trademark and thus this element of paragraph 4 of the Policy has been established.
B. Rights or Legitimate Interests
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 that he does in fact have such rights or legitimate interests. A respondent might therefore try and demonstrate that he has been commonly known by the domain name or that he is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers. However, there is no evidence to suggest that the Respondent is known by the Domain Name, nor of any legitimate noncommercial or fair use. In the absence of contrary evidence, this Panel can only assume that the Respondent derives some commercial benefit from the website to which the Domain Name resolves.
A respondent can also show, so as to establish rights or legitimate interests, that it was using a domain name in connection with a bona fide offering of goods or services. However, given the links to commercial third-party competitor sites that one finds at the web page to which the Domain Name resolves, it cannot be said that the Respondent’s use is bona fide. Several UDRP panels have held that promoting competing goods or services using a domain name confusingly similar to a complainant’s mark, is not a bona fide offering of goods or services. (See, for instance, Philip Morris USA Inc. v. n/a, WIPO Case No. D2004-0462, in which it was said: “[…] To offer competing brands for sale using a domain name confusingly similar to the Complainant’s trademark is not a bona fide offering of goods within the meaning of paragraph 4(c)(i) of the Policy: see Pfizer Inc v. The Magic Islands, WIPO Case No. D2003-0870 (December 31, 2003); Nikon, Inc. and Nikon Corporation v. Technilab, Inc., WIPO Case No. D2000-1774 (February 26, 2001)”).
The Respondent in this case is not licensed in any way by the Complainant. There is no affiliation at all and, given that the Complainant has satisfied a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name and that the Respondent has failed to meet the burden of producing evidence to the contrary, the Panel finds that the Complainant has also satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Given the wide fame of the Complainant’s INTIMISSIMI trademark, it is very likely that the Respondent was aware of it at the time of registration of the Domain Name.
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. It matters not that once the Internet user arrives at the website, it is immediately clear, because it is a parking site with online links to third party websites, or otherwise, that it is unconnected with the trademark owner. The Internet user will have been confused, at least initially, as to the relationship between the website and trade mark owner and that is enough to establish bad faith.
Given that these are the circumstances in the present case, 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. In any event, as past UDRP panels have held, typosquatting is itself evidence of 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 <initimissimi.com> be transferred to the Complainant.
Dated: August 13, 2012