WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Comerica Bank v. Katherine Mary
Case No. D2014-1056
1. The Parties
The Complainant is Comerica Bank of Dallas, Texas, United States of America, represented by Bodman LLP, United States of America.
The Respondent is Katherine Mary of Cambridge, Massachusetts, United States of America.
2. The Domain Name and Registrar
The disputed domain name <comeeica.com> is registered with Network Solutions, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2014. On June 19, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 19, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 25, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 15, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 16, 2014.
The Center appointed Nels T. Lippert as the sole panelist in this matter on August 4, 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 the Rules, paragraph 7.
The proceeding is conducted in the English language.
4. Factual Background
The Complainant is a financial services company headquartered in Dallas, Texas, United States of America. The Complainant is the owner of numerous United States trademark registrations for trademarks and service marks including Registration No. 1,251,846 for the service mark COMERICA and Registration No. 1,776,041 for the service mark COMERICA (and a design). Both United States registrations are for use of the mark in connection with banking services. In addition, the Complainant owns additional United States trademark applications and registrations that consist in whole or in part of the mark COMERICA. The Complainant also has registered the domain names <comerica.com>, <comerica.org> and <comerica.net>.
The disputed domain name <comeeica.com> was registered by the Respondent on January 25, 2014.
5. Parties’ Contentions
The Complainant contends that the mark COMERICA is coined, distinctive, powerful and symbolizes the goodwill of the Complainant. And, as a result of investing millions of dollars in promotion of the products and services identified by its trademark and as a result of its long use and widespread commercial recognition the mark is famous.
The Complainant further contends that the disputed domain name is identical or confusingly similar to the Complainant’s mark and the Complainant’s website at <comerica.com>. The disputed domain name differs from Complainant’s mark only by one letter - the replacement of the “r” with the letter “e”. The Complainant contends that this would be a common typographical error made by consumers attempting to access the website of the Complainant because the letters “e” and “r” are situated next to each other on a standard keyboard. This, according to the Complainant, constitutes typosquatting.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name because the Complainant has not licensed the Respondent or otherwise permitted the Respondent to use the mark or the disputed domain name; there is no evidence of the Respondent’s use of, or preparations to use the disputed domain name or name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; there is no evidence that the Respondent had been commonly known by the disputed domain name; and Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order for the Complainant to prevail and have the disputed domain name transferred to itself, Complainant must prove the following (Policy, paragraph 4(a)(i-iii)):
A. Identical or Confusingly Similar
The Complainant owns numerous United States trademark registrations for the COMERICA mark at least one claiming use since 1982. As noted above, the Complainant has also registered the domain name <comerica.com> through which consumers can access information regarding the Complainant and its services
The disputed domain name, <comeeica.com> differs by misspelling the Complainant’s established trademark rights by the replacement of the letter “r” with the letter “e”. By virtue of Complainant’s registrations of its trademarks, the Panel finds that Respondent, who is also located in the United States, had actual or constructive knowledge of Complainant’s trademark.
Disputed domain names with misspelled variations of trademarks have long been held to be “confusingly similar” in cases of this nature. For example, in American Online Inc. v. John Zuccarini, WIPO Case No. D2000–1495, it is observed that “the mere addition of a minor misspelling…does not create a new or different mark in which the Respondent has rights. Instead it results in a domain name that is confusingly similar to the Complainant’s mark”.
In the Panel’s view, the word “comeeica” in the disputed domain name is both phonetically and visually the same as Complainant’s trademark.
Based on this view and on the previous decisions dealing with misspellings and typosquatting, the Panel finds the disputed domain name is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
It is not refuted that Respondent has no connection or affiliation with Complainant and has received no license or consent to use Complainant’s trademark in a domain name or in any other matter. Nor has it been demonstrated that the Respondent is commonly known by or has acquired rights in the disputed domain name. Finally, the Respondent’s use of the disputed domain name deliberately diverts Internet users interested in Complainant or its services that either do not know the correct spelling or unintentionally make an error when typing in Complainant’s mark or name. The Panel finds that the Respondent has not offered any evidence of noncommercial or fair use of the disputed domain name to refute the Complainant’s allegations.
Therefore the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Respondent’s disputed domain name misspelling of the Complainant’s trademark appears designed to confuse and take advantage of Internet users who do not know the correct spelling of the Complainant’s mark or name or who mistype it. Prior panels have found that such conduct alone creates a prima facie inference of bad faith. See, Google Inc. v. Namerental.com and Leonard Bensonoff, WIPO Case No. D2001–0060. Similarly, in Alta Vista Company v. Saeid Yomtombian, WIPO Case No. D2000–0937, the panel found “the use of misspellings alone is sufficient to prove bad faith under paragraph 4(b)(iv) of the Policy because the Respondent has used these names intentionally to attract, for commercial gain, Internet users to his website by making a likelihood of confusion with the Complainants mark.” In this proceeding, the disputed domain name resolves to a parked page with sponsored listings that are served automatically by a third party. It is established that this practice often constitutes bad faith use. See, Lowen Corporation d/b/a Lowen Sign Co. v. Henry Chan, WIPO Case No. D2004–0430. Furthermore, as pointed out by Complainant, even if the Respondent does not direct this use of the disputed domain name, or receive direct compensation for such use, such use is generally attributable to the Respondent under the Policy. In the case of advertising links appearing on an automatically generated basis it is not be necessary for the registrant itself to profit directly under such arrangement in order to establish bad faith use under paragraph 4(b)(iv) of the Policy.
Finally, the lack of a response to the Complaint creates an inference that the Respondent could not provide any good faith use of the disputed domain name. Therefore, the Panel finds that the Respondent registered and uses the disputed domain name in 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 disputed domain name <comeeica.com> be transferred to the Complainant.
Nels T. Lippert
Date: August 18, 2014