WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
eBay Inc. v. James Thirds and Wolfgang Sauer
Case No. D2015-0458
1. The Parties
The Complainant is eBay Inc. of San Jose, California, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondents are James Thirds of Millersburg, Ohio, United States, and Wolfgang Sauer of Millersburg, Ohio, United States.
2. The Domain Names and Registrar
The disputed domain names <ebahy.com>, <ebaya.com>, <ebayau.com>, <ebayde.com>, <ebayit.com> and <ebazy.com> are registered with eNom (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2015. On March 16, 2015, the Center transmitted to the Registrar a request for registrar verification in connection with the disputed domain names; on the same date, the Registrar transmitted to the Center its verification response, confirming that James Thirds is listed as the registrant for the disputed domain names <ebaya.com>, <ebayau.com>, <ebayde.com>, and <ebayit.com>, and Wolfgang Sauer is listed as the registrant for <ebahy.com> and <ebazy.com>, and providing the respective 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 Respondents of the Complaint, and the proceedings commenced on March 27, 2015. In accordance with the Rules, paragraph 5(a), the due date for the Response was April 16, 2015. The Respondents did not submit any response. Accordingly, on April 17, 2015, the Center notified the Respondents’ default.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on June 1, 2015. 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 provides online consumer sales services using its main website, which resolves from the domain name <ebay.com>.
The Complainant has registered various marks that consist of, or contain, “EBAY”. On January 19, 1999, the U.S. Patent and Trademark Office recorded the registration of the Complainant’s EBAY service mark for “on-line trading services in which seller posts items to be auctioned and bidding is done electronically, and providing evaluative feedback and ratings of sellers’ goods and services, the value and prices of sellers’ goods, buyers’ and sellers’ performance, delivery, and overall trading experience in connection therewith.” Registration materials indicate the date of “first use” of the mark as September 4, 1995.
The Complainant had previously registered the <ebay.com> domain name on August 4, 1995.
Respondent Thirds registered the following disputed domain names (on the dates indicated): <ebaya.com> (February 15, 2005); <ebayau.com> (June 3, 2006); <ebayde.com> (February 4, 2008); and <ebayit.com> (November 7, 2011). Respondent Sauer registered the disputed domain names <ebahy.com> (November 9, 2005) and <ebazy.com> (April 19, 2005).
5. Parties’ Contentions
The Complainant contends principally that: (i) the disputed domain names are identical or confusingly similar to a mark in which the Complainant has rights; (ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names have been registered and are being used in bad faith.
The Complaint also states, inter alia:
>”[G]iven that there is clearly a close connection between [Respondent Thirds] and [Respondent Sauer] (most likely one and the same person) and thus the Domain Names are under common control, the Complainant submits that, for reasons of fairness and equity, it is justified in bringing a single complaint against the First and Second Respondents.”
>“eBay is widely recognised as the ‘world’s largest online Marketplace’, with a global customer base of 233 million people and a global presence in 39 markets. Since its inception, the Complainant has provided its online marketplace via its main official website at “www.ebay.com” …. eBay’s main website is the 8th most visited website in the United States, the 20th most visited website in the world and the 2nd most visited website in the world in the shopping category according to web information company Alexa ….”
>“The Respondent has engaged in a pattern of registering domain names infringing third party brands, including, for instance, <amerecanexpress.com>, <cheapticketz.com>, <goobgle.com>, <prieceline.com> and <vougue.com> ….”
>“The Complainant’s lawyers sent a cease a [sic] desist letter to the Respondent on June 23, 2014 asserting the Complainant's rights and requesting the transfer of the domain name <ebaya.com>.”
>“The cease and desist letter was returned to the Complainant’s lawyers marked with the indication ‘No such number/street’.”
>“The Respondent is not an authorised dealer, distributor, or licensee of the Complainant, nor has it been otherwise allowed by the Complainant to make any use of its EBAY trademark, in a domain name or otherwise.”
The Respondents did not reply to the Complainant’s contentions. Paragraphs 5(e) and 14(a) of the Rules permit the Panel to decide the dispute based on the Complaint. Per paragraph 14(b), the Panel may also draw appropriate inferences from the Respondents’ default.
6. Discussion and Findings
Initially, the Panel must address the Complainant’s request to accept a single complaint against the two Respondents. A consolidated complaint against multiple respondents is permissible “where (i) the domain names or the websites to which they resolve are subject to common control, and (ii) the consolidation would be fair and equitable to all parties.” WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, paragraph 4.16.
Relevant factors in the determination of common control are, among others, a common administrative or technical contact, and substantial similarity in the content of the respondents’ respective websites. Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons, WIPO Case No. D2010-0281. Here, as the Complainant alerts, the two Respondents share the same telephone number, Respondent Sauer is listed as the administrative and technical contact for some domain names (not in dispute here) owned by Respondent Thirds, and the layout and format of the websites resolved from <ebayit.com> (registered by Respondent Thirds) and <ebahy.com> (Respondent Sauer) are “similar if not identical”.
The Respondents declined the opportunity to respond to the Complainant’s argument, or object to consolidation.
In all events, the Panel determines that consolidation in this case is fair and equitable to all parties.
Turning to the merits, in order to prevail, the Complainant must satisfy each of the three elements under paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Complainant has rights in the EBAY mark. The Panel determines that the disputed domain names are confusingly similar to this mark.
Each of the disputed domain names <ebaya.com>, <ebayau.com>, <ebayde.com>, <ebayit.com> incorporates in full the well-known EBAY mark. The respective attachment of “-a”, “-au”, “-de”, and “-it”, along with the generic Top Level Domain (“gTLD”) “.com”, does not defeat confusing similarity. For the disputed domain names <ebahy.com> and <ebazy.com>, a single letter (“h” and “z”) is inserted within the “EBAY” term; but again, the presence of the EBAY mark is clear, and confusing similarity results.
The first element is established.
B. Rights or Legitimate Interests
The Complainant contends that the Respondents have no rights or legitimate interests in respect of the disputed domain names, and has met its initial burden of making a prima facie showing. Thus, the Respondents have the burden to demonstrate any such rights or legitimate interests, but have declined to participate in this mandatory proceeding. The Panel is unable to ascertain any evidence that would demonstrate the Respondents’ rights or legitimate interests in the disputed domain names, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is demonstrated.
C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, the Complainant must show that each disputed domain name “has been registered and is being used in bad faith.” Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that are evidence of bad faith registration and use.
At the time when the Complaint was filed, the disputed domain names <ebaya.com>, <ebayde.com>, <ebayit.com>, and <ebahy.com> resolved to sites that included, among others, a direct reference to the Complainant; Internet users who resorted to the disputed domain names <ebayau.com> and <ebazy.com> were redirected to sites that included links to a variety of goods and services. Internet archives from 2006 show that the disputed domain name <ebazy.com> also resulted in a site that referred to the Complainant.
The Panel concludes that by using the disputed domain names, each Respondent “intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] web site … by creating a likelihood of confusion with the [C]omplainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent’s] web site”, as set forth in paragraph 4(b)(iv).
In addition, each of the disputed domain names here indicates typosquatting, which is evidence of bad faith. National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011.
The third element is also satisfied.
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 <ebahy.com>, <ebaya.com>, <ebayau.com>, <ebayde.com>, <ebayit.com>, and <ebazy.com> be transferred to the Complainant.
Date: June 15, 2015