WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Vanguard Group, Inc. v. RealTimeInternet.com, Inc.
Case No. D2001-0873
1. The Parties
The Complainant is The Vanguard Group, Inc., a corporation organized and existing under the laws of the State of Pennsylvania, United States of America, having its principal place of business at Malvern, Pennsylvania, United States of America. The Respondent is RealTimeInternet.com, Inc., an entity of unknown characteristics having its principal place of business at Fort Wayne, Indiana, United States of America.
2. The Domain Name and Registrar
The domain name at issue is: <vangaurd.com>, which domain name is registered with Signature Domains, Inc. ("SDI"), a registrar based in the State of Florida, United States of America.
3. Procedural History
A Complaint was submitted to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on July 10, 2001, in electronic form. The hard copy of the Complaint was received by the WIPO Center on July 12, 2001. The WIPO Center acknowledged receipt of the Complaint on July 12, 2001.
On July 13, 2001, a Request for Registrar Verification was transmitted to SDI. A second Reminder Request for Registrar Verification was transmitted on July 19, 2001. SDI replied on July 19, 2001.
A Formal Requirements Compliance Checklist was initiated by the assigned WIPO Center Case Administrator. The Formal Requirements Compliance Checklist omitted a check on the Complainantís compliance with Rule 3(b)(xiv). The Panelist has independently reviewed the Requirements and finds that the Complainant is in formal compliance with the requirements of the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules") and the WIPO Supplemental Rules for Uniform Domain Dispute Resolution Policy, in effect as of December 1, 1999 (the "WIPO Supplemental Rules"), including Rule 3(b)(xiv) which is included in Paragraph 18 of the Complaint. The required fees for a single-member Panel were paid by the Complainant on time and in the required amount.
No formal deficiencies having been recorded, on July 20, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of August 8, 2001, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSIís Whois confirmation, by post/courier to the indicated postal address and by facsimile to the indicated facsimile number. Having reviewed the communications records in the case file, the Panelist finds that the WIPO Center has discharged its responsibility under Paragraph 2(a), Rules, "to employ reasonably available means calculated to achieve actual notice to Respondent."
On August 10, 2001, having received no Response from the designated Respondent, the WIPO Center transmitted to the parties a Notification of Respondent Default using the same contact details and methods as were used for the Commencement Notification.
On August 20, 2001, the WIPO Center invited Richard Allan Horning to serve as the Sole Panelist in Case No. D2001-0873 and transmitted to him a Statement of Acceptance and Request for Declaration of Impartiality and Independence. Richard Allan Horningís Statement of Acceptance and Declaration of Impartiality and Independence was received on August 21, 2001. On August 22, 2001, the WIPO Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Richard Allan Horning was formally appointed as the Sole Panelist. The Projected Decision Date was September 5, 2001.
The Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Policy, Rules and WIPO Supplemental Rules.
The Panelist shall issue his Decision based on the Complaint, the Policy, the Rules, the WIPO Supplemental Rules and without the benefit of any Response from Respondent.
4. Factual Background
Complainant is the owner of record of various U.S. trademarks, which it has used in connection with the operation of a financial investment and financial advisory services business, and in connection with finance and investment related products and services since 1974. The Complainant has provided evidence of the registration of the following mark, which has been adopted and used in this regard:
The Respondent registered the domain name <vangaurd.com> on February 21, 2001, (Complaint, Annex A). At the time of the submission of the dispute to the Panelist, the <vangaurd.com> website registered by Respondent resolved to a site entitled "Looking for Something?," which offered links to various informational websites. At the time the Complaint was filed, the <vangaurd.com> website registered by Respondent resolved to a site entitled "visual.com," which offered vanity e-mail and online gambling services, as well as links to other websites.
The Complainant wrote to Respondent by letter dated April 18, 2001 advising Respondent that, in its view, Respondentís registration violated Complainantís trademark rights and Complainantís goodwill (Complaint, Annex C). A follow-up e-mail was transmitted on May 29, 2001. There is no record of a Response.
5. Partiesí Contentions
Complainant contends that Respondent has registered a domain name which is nearly identical to and confusingly similar to the service marks and trademarks registered and used by Complainant, that Respondent has no rights or legitimate interests in respect to the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.
Respondent has not contested the allegations of the Complaint.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panelist as to the principles the Panelist is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,
2) that the Respondent has no legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and used in bad faith.
The Panelist finds that domain name at issue is either identical (Hewlett-Packard Company v. Cupcake City, NAF Case No. NAF0002000093562; America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., NAF Case No. FA0002000093679) or confusingly similar (Marriott International, Inc. v. John Marriot, NAF Case No. FA 0002000094737; Identigene, Inc. v. Genetest Laboratories, WIPO Case No. D2000-1100; Seiko Epson Corporation v. Distribution Purchasing & Logistics Corp., NAF Case 0003000094219) to Complainantís marks.
Complainant has alleged and Respondent has failed to deny that it has no legitimate interests in respect of the domain name at issue. Alcoholics Anonymous World Services, Inc. v. Raymond, WIPO Case No. D2000-0007; Bronson Plc v. Unimetal Sanayai ve Tic. A.S., WIPO Case No. D2000-0011. Respondent is not commonly known by the domain name at issue, and has not acquired trademark or service mark rights in the domain name. The Panelist finds that Respondent has no rights or legitimate interest in the domain name.
The question thus arises whether the domain name at issue has been registered and is being used in bad faith. Paragraph 4.b of the Policy sets forth "in particular but without limitation" circumstances which "shall be evidence of registration and use of a domain name in bad faith." Those circumstances are:
(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by 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 Complainantís mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
Complainant has alleged and the Panelist finds that Respondentís use of the domain name at issue, to resolve to a website entitled "visual.com," as alleged to be the case at the time the Complaint was filed, or to the website entitled "Looking for Something?" as is the case presently, constitutes bad faith registration and use under the Policy under the circumstances of this particular dispute.
Vangaurd is a common misspelling of Complainantís registered trademark. Misspellings such as this, without an explanation from Respondent, have been previously held to be "typosquatting" and in bad faith. General Electric Company v. Fisher Zuieli, A/K/A Zuieli Fisher, WIPO Case No. D2000-0377. See Pig Improvement Company, Inc. v. Platinum Net, Inc., WIPO Case No. D2000-1594; Microsoft Corp. v. Global Net 2000, Inc., WIPO Case No. D2000-0554; Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; and News Group Newspapers Limited and News Network Limited v. Momm Amed la, WIPO Case No. D2000-1623.
For all of the foregoing reasons, the Panelist decides that the domain name registered by Respondent is identical or confusingly similar to the trademarks and service marks in which the Complainant has rights, that Respondent has no rights or legitimate interests in respect of the domain name, and that the Respondentís domain name has been registered and is being used in bad faith.
Accordingly, pursuant to Paragraph 4.i of the Policy, the Panelist requires that the registration of the domain name <vangaurd.com> be transferred to the Complainant.
Richard Allan Horning
Dated: September 4, 2001