WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Artemis Marketing Corp. v. Vietnam Domain Privacy Services
Case No. D2018-2739
1. The Parties
The Complainant is Artemis Marketing Corp. of Seffner, Florida, United States of America (“United States”), represented by Bryan Cave Leighton Paisner, United States.
The Respondent is Vietnam Domain Privacy Services of Ho Chi Minh City, Viet Nam.
2. The Domain Names and Registrar
The disputed domain names <roomestogo.com>, <roomstogoclearance.com>, and <roomstogoo.com> are registered with April Sea Information Technology Corporation (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 28, 2018. On November 28, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 4 and 6, 2019, 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. On December 12, 2018, the Center sent an email communication to the Parties in English and Vietnamese, informing them that the language of the Registration Agreement is Vietnamese and inviting the Parties to submit their request as to the language of the proceedings. The Complainant submitted its request for English to be the language of the proceeding on December 12, 2018. The Respondent did not submit any comment.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 27, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 16, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 17, 2019.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on January 28, 2019. 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 is a retail furniture company founded in 1991 and selling its products throughout the United States.
The Complainant is the owner of several United States trademarks for ROOMS TO GO, including, among others, Registration No. 1,756,239 issued on March 2, 1993.
The disputed domain names were registered as follows:
<roomestogo.com> May 3, 2004
<roomstogoclearance.com> June 23, 2004
<roomstogoo.com> May 11, 2006
They are all connected to pages containing furniture-related click-through advertising links.
5. Parties’ Contentions
The Complainant alleges that it has satisfied all elements of the Policy, paragraph 4.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of the Proceedings
While the Registration Agreement for the disputed domain names is in Vietnamese, the Complainant has pointed out in its Complaint that the websites connected to the disputed domain names are comprised of English language content and that the Complainant has no familiarity with Vietnamese. Therefore, the Complainant has requested English to be the language of the proceeding.
Paragraph 11(a) of the Rules stipulates that, “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”.
Taking into account the circumstances of this case, the Panel does not consider it prejudicial to the Respondent if English were adopted as the language of the proceeding. The Panel finds that substantial additional expense and delay would likely be incurred if the Complaint and annexes thereto had to be translated into Vietnamese. In view of the Policy aim of facilitating a time and cost-efficient procedure for the resolution of domain name disputes, the Panel finds it appropriate to exercise its discretion according to paragraph 11(a) of the Rules and allow the proceeding to be conducted in English.
B. Identical or Confusingly Similar
The Complainant has shown that it has rights in the ROOMS TO GO trademark.
The Complainant’s trademark is reproduced in its entirety in the disputed domain name <roomstogoclearance.com>. The disputed domain name differs from the Complainant’s ROOMS TO GO trademark only by the suffix “clearance”. It is the consensus view of UDRP panels that the addition of such descriptive terms does not prevent a finding of confusing similarity under the first element of the Policy (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7).
The disputed domain names <roomestogo.com> and <roomestogoo.com> differ from the ROOMS TO GO trademark only by the addition of the letter “e” in the former and the letter “o” in the latter domain name. A domain name which consists of a common, obvious, or intentional misspelling of a trademark (so-called “typosquatting”) is considered by UDRP panels to be confusingly similar to the relevant trademark for purposes of the first element (WIPO Overview 3.0, section 1.9).
Accordingly, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s trademark and that the Complainant has fulfilled the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain names. The Complainant contends that the Respondent is not commonly known by the disputed domain names, affiliated with the Complainant, authorized to use the disputed domain names by the Complainant, nor making any bona fide use of the disputed domain names.
Based on the Complainant’s credible contentions, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Under the circumstances of this case, it can be inferred that the Respondent was aware of the Complainant’s trademark when registering the disputed domain names.
By registering and using the disputed domain names, the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the Complainant’s trademark.
The Panel finds, therefore, that paragraphs 4(b)(iv) and 4(a)(iii) of the Policy are fulfilled.
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 <roomestogo.com>, <roomstogoclearance.com>, and <roomstogoo.com> be transferred to the Complainant.
Date: February 11, 2019