WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Anywayanyday Limited v. Anton Chehov / PrivacyProtect.org
Case No. D2013-0223
1. The Parties
The Complainant is Anywayanyday Limited of Nicosia, Cyprus, represented by Noerr LLP, Germany.
The Respondent is Anton Chehov of Murmansk, Russian Federation / PrivacyProtect.org of Nobby Beach, Australia.
2. The Domain Names and Registrar
The disputed domain names <amywayanyday.com>, <anewayanyday.com>, <anuwayanyday.com>, <anywauanyday.com>, <anywayanuday.com>, <anywayanydau.com>, <anywayanydayy.com>, <nywayanyday.com> are registered with Cloud Group Limited of Providence, Utah, United States of America (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 31, 2013. On January 31, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On February 4, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 5, 2013, 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 amendment to the Complaint on February 6, 2013.
On February 5, 2013, the Respondent sent an email communication to the Center, by which it requested the Complaint to be translated to Russian. On February 6, 2013, the Center replied to this communication, whereby it stated that under paragraph 11 of the Rules the language of the proceedings is English, and advised the Respondent as to how it could respond to the Complaint.
The Center verified that the Complaint together with the amendment to 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 February 8, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 28, 2013. The Respondent did not submit any response. Accordingly, the Center informed the Parties on March 1, 2013, that it would proceed with the panel appointment process.
The Center appointed Assen Alexiev as the sole panelist in this matter on March 8, 2013. 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 one of the leading providers of flight and hotel reservation services in the Russian Federation. It has used the trademark ANYWAYANYDAY in connection with booking tools for flights and accommodations since August 2008. The turnover of the Complainant in 2011 was equal to USD 189,000,000. In February 2010 the Complainant’s website at “www.anywayanyday.com” received the “RUNET Golden Website – 2009” award, and in September 2010 the same website was declared the best Internet booking system for business travelers by the Russian Business Travel & MICE. In February 2012, the Forbes magazine ranked the Complainant as the fourth largest Russian Internet company and as the largest Russian booking tools provider.
The Complainant is the owner of the following registered service marks:
- the word service mark ANYWAYANYDAY with registration no. 378,114, registered on April 29, 2009 for the territory of the Russian Federation in International Classes 38, 39 and 43; and
- International service mark ANYWAYANYDAY with registration no. 1,115,583, registered on April 9, 2012 for the territories of 13 countries in International Classes 38, 39 and 43.
The disputed domain names <anewayanyday.com>, <anywayanuday.com>, <anuwayanyday.com>, <anywayanydau.com>, and <nywayanyday.com> were registered on August 17, 2012, and the disputed domain names <anywauanyday.com>, <anywayanydayy.com>, and <amywayanyday.com> were registered on August 18, 2012.
5. Parties’ Contentions
The Complainant submits that the disputed domain names are identical or confusingly similar to the service mark ANYWAYANYDAY of the Complainant. All disputed domain names are misspellings of the Complainant’s service mark. These misspellings differ from the Complainant’s service mark by only one letter, and this difference is insufficient to eliminate the high degree of similarity and the risk of confusion between the disputed domain names and the Complainant’s service mark.
According to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain names. There is no evidence for the Respondent’s use, or demonstrable preparations to use, of the disputed domain names in connection with a bona fide offering of goods or services. The disputed domain names redirect Internet users searching for the Complainant’s services to the website at “www.aviasales.ru”, which directly competes with the Complainant by also offering travel booking services. The Respondent is not commonly known under the trade name ANYWAYANYDAY or any under other variations of this service mark. The Complainant has not permitted any third parties to use its ANYWAYANYDAY service mark. All disputed domain names were registered only in August 2012 - more than four years after the Complainant registered its service mark and commenced using it for its services.
The Complainant contends that the disputed domain names have been registered and are being used in bad faith by the Respondent. The Respondent uses them to promote similar or identical services to the services offered by the Complainant, and to redirect Internet users to the website at “www.avisales.ru”, which is maintained by a competitor of the Complainant. This shows that the Respondent has registered and is using the disputed domain names with knowledge of the Complainant and of its ANYWAYANYDAY service mark, and that the Respondent’s sole purpose in selecting the disputed domain names was to improperly capitalize on the reputation and goodwill established by the Complainant. Thus, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s ANYWAYANYDAY service mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the Domain Names:
(i) That the disputed domain names are 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 disputed domain names; and
(iii) That the Respondent has registered and is using the disputed domain names in bad faith.
By Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case.
In this administrative proceeding, the Respondent chose not to submit a formal Response. This conduct of the Respondent leads the Panel to conclude that it has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take his decision on the basis of the statements and documents before it and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.
A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its rights in the ANYWAYANYDAY service mark, registered for the territory of the Russian Federation and a number of other countries.
It is a common practice under the Policy to disregard in appropriate circumstances the generic Top-Level Domains such as “.com” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of each of the disputed domain names is their remaining section, which is “amywayanyday”, “anewayanyday”, “anuwayanyday”, “anywauanyday”, “anywayanuday”, “anywayanydau”, “anywayanydayy”, and “nywayanyday”, respectively. Each of these represents a misspelled variation (with only one letter missing, doubled or changed) of the word combination “any way any day”, which combination is in turn identical to the Complainant’s service mark. Each of these misspellings has no independent other meaning, and rather than distinguishing the respective disputed domain name from the Complainant’s service mark, it is likely to lead Internet users into recognizing this service mark in them and into expecting the existence of a certain link between the disputed domain names and the Complainant. In this regard, it should be noted that there are numerous prior UDRP panel decisions where minor differences of spelling have been held to make a domain name confusingly similar to a trade or service mark.
For these reasons, the Panel finds that the disputed domain names are confusingly similar to the ANYWAYANYDAY service marks in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant claims that the Respondent has no rights or legitimate interests in the disputed domain names, and provides certain arguments and evidence in this regard. Thus, the Complainant establishes a prima facie case under Policy, paragraph 4(a)(ii).
It is well established that once a complainant makes out a prima facie case that the respondent has no rights or legitimate interests in a domain name, the burden shifts to the respondent to rebut the showing by providing evidence to the contrary.
In the present case, the Respondent has chosen not to present to the Panel any allegations or documents in its defense despite the burden under the Rules, paragraph 5(b)(i) and 5(b)(ix), or the consequences that a panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any justification for registering or using the disputed domain names, it could have provided it. In particular, the Respondent has not contended that any of the circumstances described in Policy, paragraph 4(c) - or any other circumstance - is present in its favor.
The WhoIs information about the Respondent provided by the Registrar does not contain any evidence of rights or legitimate interests of the Respondent in respect of the disputed domain names.
At the same time, the disputed domain names represent confusingly similar misspellings of the word combination “ANYWAYANYDAY”, registered and extensively used by the Complainant as a service mark. The Respondent does not deny the contentions of the Complainant, does not claim having rights or legitimate interests in respect of the disputed domain names, and does not provide any explanation whatsoever for their registration and use. At the same time, as alleged by the Complainant, the Respondent has used the disputed domain names to redirect Internet users to the website of a competitor of the Complainant.
In the lack of any evidence or allegations to the contrary, the above satisfies the Panel that the Respondent was aware of the goodwill of the Complainant and of its ANYWAYANYDAY service mark, and that this goodwill has motivated the Respondent to choose to register its misspellings as domain names and to link them to the website of a competitor of the Complainant in an attempt to extract certain financial gain.
In the Panel’s view, such conduct could not be regarded as giving rise to rights or legitimate interests of the Respondent in the disputed domain names. Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names within the meaning of the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
For the purposes of Policy, paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder 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 the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder 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 holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s 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 your website or location or of a product or service on the holder’s website or location.
In the present case, the disputed domain names are confusingly similar to the Complainant’s ANYWAYANYDAY service marks, and this confusing similarity is achieved through the use of misspelled variations of these service marks - an activity commonly referred to as typosquatting. The use of eight different misspellings is strong evidence that the Respondent must have been aware of the Complainant and of its goodwill at the time of registration of the disputed domain names and must have intended to make them confusingly similar to the Complainant’s service mark. After their registration, the Respondent has used the disputed domain names to link them to a website of a competitor of the Complainant, offering the same or similar services to Internet users.
Taking all the above into account, and in the lack of any contrary evidence or even allegation of any actual or contemplated good faith use of the disputed domain names, the Panel is prepared to accept that the Respondent has registered and used the disputed domain names in bad faith primarily in an attempt to intentionally attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s ANYWAYANYDAY service marks as to the source and affiliation of the Respondent’s website or other online location, or of the services offered on the Respondent’s website or other online location.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <amywayanyday.com>, <anewayanyday.com>, <anuwayanyday.com>, <anywauanyday.com>, <anywayanuday.com>, <anywayanydau.com>, <anywayanydayy.com>, <nywayanyday.com> be transferred to the Complainant.
Date: March 26, 2013