WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Symantec Corporation v. Nadeem Qadir
Case No. D2005-1193
1. The Parties
The Complainant is Symantec Corporation, Cupertino, California, United States of America, represented by Heller Ehrman LLP, San Francisco, California, United States of America.
The Respondent is Nadeem Qadir, Dhaka, Bangladesh.
2. The Domain Name and Registrar
The disputed domain name <symantic.com> is registered with eNom, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 17, 2005 by e-mail and on November 21, 2005 in hardcopy. On November 18, 2005, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the domain name at issue. On November 18, 2005, eNom, Inc. transmitted by email to the Center its verification providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 November 25, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was December 15, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2005.
The Center appointed Manoel J. Pereira dos Santos as the sole panelist in this matter on January 20, 2006. 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 trademark and tradename upon which the Complaint is based is SYMANTEC. Complainant is called Symantec Corporation, and, according to documentary evidence and contentions submitted by Complainant, has been using its SYMANTEC trademark in interstate commerce since at least 1985, owns the trademarks SYMANTEC and SYMANTEC and Design in the United States and other countries, and owns the domain name <symantec.com>. Reference is made to Annexes C and D to the Complaint (evidence of registration of the subject trademarks).
According to the contentions submitted by Complainant, the trademarks SYMANTEC and SYMANTEC and Design have acquired significant distinctiveness as a result of the worldwide activities of Complainant in connection with computer software security and a variety of related products and services.
According to documentary evidence and contentions submitted by Complainant, the disputed domain name was registered on November 20, 2000, and was subsequently transferred to Respondent. On November 1, 2005, Complainant emailed Respondent a cease and desist letter demanding that Respondent immediately transfer <symantic.com> to Complainant. No response was received as of the filing of the Complaint.
Until approximately November 2005, Respondent linked the <symantic.com> domain name to his other domain name <gotoo.com> which redirected to a website at “www.errorsafe.com” where computer security software in direct competition with Complainant’s products and services were offered. The “www.symantic.com” website was also indicated as a source of harmful spyware. Reference is made to Annexes E and F to the Complaint (copy of a printout of the “www.errorsafe.com” website as of October 31, 2005, and of a printout of the “www.free-web-browsers.com” website as of October 26, 2005, discussing the spyware problem and referencing <symantic.com>).
As of approximately November 3, 2005, the domain name ceased to redirect to the “www.errorsafe.com” website, and was redirected to “www.yahoo.com”. An independent verification was conducted by the Panel by visiting the “www.symantic.com” website, and the Panel found that the disputed domain name was still linked to the website “www.gotoo.com” and further redirected to the “www.yahoo.com” website, where a search result page on Symantec antivirus was displayed (access on February 1, 2006).
5. Parties’ Contentions
Complainant argues that the disputed domain name is virtually identical to Complainant’s SYMANTEC mark and, therefore, is confusingly similar to Complainant’s SYMANTEC mark.
Complainant also contends that Respondent has created a strong likelihood that Internet users seeking to access information about Complainant’s SYMANTEC products and services shall be confused and shall mistakenly assume that Respondent and other third-parties associated with the <symantic.com> domain name are affiliated with Complainant. Complainant argues that the confusion, dilution, and tarnishment caused by Respondent’s acquisition and use of the <symantic.com> domain name is particularly likely given the manner in which Respondent has used the domain name.
Complainant further contends that Respondent has no rights or legitimate interests with respect to the disputed domain name because Complainant has not licensed the SYMANTEC trademark or the <symantec.com> domain name to Respondent; Respondent has not filed any applications for registration of the SYMANTEC mark in any trademark offices or jurisdictions worldwide; Respondent does not produce or market any of his goods or services under the SYMANTEC mark or name and is not offering any of his own goods or services under the <symantic.com> domain name; and Respondent is not commonly known by the domain name.
Finally, Complainant contends that the disputed domain name was registered and is being used in bad faith. Respondent’s bad faith is demonstrated by his use of the <symantic.com> domain name in order to free ride on Complainant’s reputation and customer goodwill by diverting Internet users and customers to a website for commercial gain. Complainant argues that Respondent had actual notice of the SYMANTEC mark and domain name, in view of the redirection of the disputed domain name to a website offering competitive products, and had constructive notice of Complainant’s prior use of the SYMANTEC mark.
Complainant also argues that Respondent’s bad faith is demonstrated by his acquisition and use of a domain name when he does not normally use that domain name or a corresponding mark or name to identify his company or his goods or services, as well as by his refusal to transfer the disputed domain name to Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Effect of the Default
The consensus view in UDRP panel decisions is that a respondent’s default does not automatically result in a decision in favor of a complainant and that a complainant must establish each of the three elements required by paragraph 4(a) of the Policy (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 2.2). However, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from the failure of a party to comply with a provision or requirement of the Rules.
This Panel finds that there are no exceptional circumstances for the failure of the Respondent to submit a Response. As a result, the Panel infers that the Respondent does not deny the facts asserted and contentions made by Complainant from these facts. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084; Ross-Simons, Inc. v. DomainContact, WIPO Case No. D2003-0994. Therefore, asserted facts that are not unreasonable will be taken as true and the Respondent will be subject to the inferences that flow naturally from the information provided by the Complainant. Reuters Limited v. Global Net 2000, Inc., supra; RX America, LLC v. Matthew Smith, WIPO Case No. D2005-0540.
The Panel will now review each of the three cumulative elements set forth in paragraph 4(a) of the Policy to determine whether Complainant has complied with such requirements.
A. Identical or Confusingly Similar
Complainant has evidenced that it owns exclusive rights to the SYMANTEC mark. Complainant’s contentions that it has used such mark since at least 1985, and that it also owns the domain name <symantec.com> are admitted.
Complainant also contends that the <symantic.com> domain name is virtually identical to Complainant’s SYMANTEC mark – merely substituting an “i” for an “e” – and, therefore, is confusingly similar to Complainant’s SYMANTEC mark. Complainant relies on the VeriSign, Inc. v. Onlinemalls, WIPO Case No. D2000-1446, and Pfizer, Inc. v. Re This Domain For Sale-Email, WIPO Case No. D2002-0409, decisions where the panel has found that minor misspellings of complainant’s marks create marks and domain names virtually identical and capable of causing a clear likelihood of confusion.
This is a “typosquatting”case, where the disputed domain name is a slight variation from a registered trademark. In fact, the <symantic.com> domain name comprises the Complainant’s SYMANTEC mark with a single misspelling of an element of the mark: an “i” instead of an “e”. As a result, this is an example of confusing similarity brought about through easily made typing errors made by an Internet user: rather than typing the letter “e” to visit Complainant’s website, an Internet user could easily type an “i” and be diverted to a different website.
The practice of “typosquatting” has been consistently regarded in previous UDRP decisions as creating domain names confusingly similar to the relevant mark. ACCOR v. Brigit Klostermann, WIPO Case No. D2005-0627; Sharman License Holdings, Limited v. IcedIt.com, WIPO Decision No. D2004-0713; Ross-Simons, Inc. v. Domain.Contact, WIPO Case No. D2003-0994.
In addition, a comparison between the SYMANTEC trademark and the <symantic.com> domain name shows a clear likelihood of confusion. In sum, the case passes the test for confusing similarity (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 1.2).
Finally, the Panel admits the evidence submitted by Complainant to the effect that actual confusion by consumers who mistakenly entered the Respondent’s domain name when attempting to access Complainant’s website has been reported, as per Annex G.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.
B. Rights or Legitimate Interests
Complainant further contends that Respondent has no legitimate interests or rights in the disputed domain name.
Complainant is required to make out an initial prima facie case demonstrating the lack of rights or legitimate interests in the domain name by the Respondent. If the respondent fails to rebut the Complainant’s prima facie showing, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 2.1).
The Panel finds that the Complainant has established a prima facie case. In fact, the Respondent is not commonly known by the disputed domain name, the principal element of the disputed domain name being the Complainant’s name and trademark, and Complainant has not authorized the Respondent to use its mark and name in the domain name.
The Complainant contends that the Respondent is not using the domain name with a bona fide offering of goods or services, since Respondent is not offering any goods or services of his own under the <symantic.com> domain name, and that Respondent is not making any legitimate noncommercial or fair use of the disputed domain name, as the <symantic.com> domain name is used to divert consumers from Complainant’s website to other commercial websites. By defaulting, the Respondent has failed to provide the Panel with any evidence of a bona fide offering of goods or services or of a legitimate noncommercial or fair use of the domain name.
The Panel notes that Respondent has changed its previous practice of redirecting Internet users to the “www.errorsafe.com” website by currently redirecting such users to a particular <yahoo.com> webpage where a search result page on Symantec antivirus product is displayed. The Panel notes that such change occurred after Respondent received a cease and desist letter sent by the Complainant. That circumstance triggers two conclusions: first, the Respondent received notice of the cease and desist letter since it reacted thereto; second, the Respondent has no legitimate purpose to use and maintain the disputed domain name and is trying to hide its previous use of the disputed domain name.
In short, the Complainant has satisfied its burden of providing sufficient evidence to make a prima facie case showing that Respondent lacks rights to or legitimate interests in the disputed domain name, and the Respondent has failed to provide the Panel with any evidence that the circumstances set forth in paragraph 4(c) of the Policy would be present. Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.
In light of the foregoing, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met.
C. Registered and Used in Bad Faith
Complainant argues that Respondent’s bad faith is demonstrated by his use of the <symantic.com> domain name in order to free-ride on Complainant’s reputation and customer goodwill by diverting Internet users and customers to a website for commercial gain.
The fact that the Respondent has chosen as a domain name the word “symantic,” which is confusingly similar and phonetically identical to the Complainant’s previously registered and known trademark is an indication that registration thereof was made in bad faith. Further, the Panel finds, in the circumstances of this case, and infers from the Respondent’s default that Respondent intended to free-ride on the Complainant’s reputation and goodwill.
The act of 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 and use. 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. John Zuccarini, WIPO Case No. D2002-1011. The Panel concurs that this is the correct approach.
This Panel, furthermore, takes the view that the content of a website (whether it is similar or different to the business of a trademark owner) is relevant in the finding of bad faith registration and use. This is so because where a potential visitor, after typing in a confusingly similar domain name, reaches the website offering for sale goods and services that are in direct competition with those of the owner, there is clear divertion of Internet traffic in bad faith. These circumstances are present in this case and, therefore, the Panel finds that the disputed domain name was used in bad faith.
The Panel found before, for the purpose of determining whether or not the Respondent has a legitimate interest, that Respondent’s change of the redirection function for the disputed domain name was arguably intended to avoid a finding of bad faith in the present proceeding. It should also be added that such redirection is likely to confuse and deceive the public into believing that Respondent or other third-parties associated with the website are affiliated with or sponsored by the owner of the SYMANTEC trademark. Complainant’s contentions in this respect are warranted.
In short, the manner in which Respondent has used and is using the <symantic.com> domain name demonstrate that the disputed domain name was registered, was used and is still being used in bad faith.
Therefore, the Panel finds that the requirement of paragraph 4(a)(iii) of the Policy is met.
The Panel concludes that (a) the <symantic.com> domain name is confusingly similar to Complainant’s trademark; (b) the Respondent has no rights or legitimate interests in the disputed domain name; and (c) the Respondent has registered and used the disputed domain name in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <symantic.com> be transferred to the Complainant.
Manoel J. Pereira dos Santos
Dated: February 3, 2006