WIPO Arbitration and Mediaton Center
ADMINISTRATIVE PANEL DECISION
Apple Inc. v. Hung-Yen Cheng
Case No. D2014-0186
1. The Parties
Complainant is Apple Inc. of Cupertino, California, United States of America (“US”) represented by Kilpatrick Townsend & Stockton LLP, US.
Respondent is Hung-Yen Cheng of Bakersfield, California, US.
2. The Domain Name and Registrar
The disputed domain name <applw.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 7, 2014. On the same day, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. Also on February 7, 2014, the Registrar transmitted by e-mail to the Center its verification response confirming Respondent as the registrant and provided 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”).
In accordance with paragraphs 2(a) and 4(a) of the Rules, the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 12, 2014. In accordance with paragraph 5(a) of the Rules, the due date for Response was March 4, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 5, 2014.
The Center appointed Robert A. Badgley as the sole panelist in this matter on March 17, 2014. 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 paragraph 7 of the Rules.
4. Factual Background
The following allegations are made in the Complaint, supported by annexes thereto, undisputed by Respondent, and found to be plausible by the Panel.
Complainant’s APPLE trademark, registered in the US as early as 1997 and in many jurisdictions throughout the world, is one of the most famous marks in the world, as a source identifier to identify and distinguish Complainant’s products, including personal computers, mobile phones, media devices, portable digital media players, as well as related software and services.
Complainant also operates the website “www.apple.com”, one of the Internet’s most frequently visited sites, in connection with its business.
The Domain Name was registered by the Respondent on September 28, 2010. At the website to which the Domain Name resolves, Respondent has set up a fairly basic page with click-through links to computer-related websites, some of which purport to offer products and services from Complainant’s competitors.
5. Parties’ Contentions
The salient factual contentions upon which this Complaint is based are summarized immediately above. Complainant asserts that it has proven the three elements required under the Policy for a transfer of the Domain Name.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(I) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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.
A. Identical or Confusingly Similar
There is no doubt that Complainant holds rights in the famous APPLE trademark. The Domain Name is identical to the APPLE mark except for the fact that the “e” is replaced with a “w.” This minor difference does not significantly diminish the confusing similarity between the mark and the Domain Name.
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Respondent has made no attempt to rebut the allegation that Respondent had no authority to register the Domain Name, and Respondent has not otherwise come forward to assert his bona fides. On this record, the Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name.
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent is in bad faith within the meaning of Policy paragraph 4(b)(iv). This is a classic case of typosquatting. Respondent evidently is aware of the famous APPLE mark, since Respondent’s website features commercial hyperlinks expressly referring to Complainant’s APPLE products. Moreover, the Panel notes that the letter “e” sits right next to the letter “w” on the QWERTY keyboard. It is obvious to the Panel that Respondent’s intention here was to attract Internet users who have “fat-fingered” the intended web address on the keyboard and landed as a result of their typo at Respondent’s site, whereupon they are greeted with hyperlinks apparently related to Complainant and its wares. Hence, the Panel concludes that Respondent intentionally attempted to use the Domain Name to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with Complainant’s famous mark.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is satisfied.
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 <applw.com> be transferred to Complainant.
Robert A. Badgley
Date: March 20, 2014