Generic Top Level Domain Name (gTLD) Decisions

Complainant is AltaVista Company, Palo Alto, CA, USA ("Complainant") represented by Laurie S. Gill, Palmer & Dodge, LLP. Respondent is Jan Looymans, Valkenswaard, Netherlands ("Respondent").

The domain name at issue is "altavistaq.com" registered with Tucows.com, Inc.

The Panelist certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as the panelist in this proceeding.

Honorable Carolyn Marks Johnson sits as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on October 27, 2000; The Forum received a hard copy of the Complaint on October 26, 2000.

On October 30, 2000 Tucows.com, Inc. confirmed by e-mail to the Forum that the domain name "altavistaq.com" is registered with Tucows.com, Inc. and that Respondent is the current registrant of the name. Tucows.com, Inc. has verified that Respondent is bound by the Tucows.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On November 6, 2000 a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 27, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts and to postmaster@altavistaq.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On December 4, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Honorable Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

Complainant requests that the domain name be transferred from Respondent to Complainant.

A. Complainant alleges the following:

B. Respondent failed to submit a response in this matter.

Complainant, AltaVista Company, has been using the mark ALTAVISTA to identify its company and its well-known Internet services since December of 1995. Currently, since March of 1997, Complainant has maintained registered trademarks ALTAVISTA and ALTA VISTA with the United States Patent and Trademark Office. In addition, Complainant owns registrations with and has applied for registration of the trademark ALTA VISTA in hundreds of countries.

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Respondent registered ALTAVISTAQ.COM April of 2000. Respondent is also the registrant of SEXY-PALACE.COM to which Internet users are automatically forwarded when attempting to access the domain name in question.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that a complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical to or confusingly similar to a trademark or service mark in which Complainant has rights;

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Complainant has established its rights based on its famous registered trademark, ALTA VISTA.

Respondent’s domain name is virtually identical to and confusingly similar to Complainant’s well-known mark. The only distinction between the domain name in question and Complainant’s mark is an added letter, Q. See Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 6, 2000) (finding that adding the letter "s" to the Complainant’s UNIVERSAL STUDIOS STORE mark does not change the overall impression of the mark and thus is confusingly similar to the Complainant’s mark).

The Panel finds that the domain name in issue is identical to and confusingly similar to Complainant’s established mark.

Under the UDRP, Respondent has the burden to prove that it has rights or legitimate interests in the domain names at issue. Here, no evidence exists to support any claim by Respondent to have any such rights or legitimate interests in said domain name. Policy ¶ 4.a.(ii). Accordingly, Complainant’s proof supports a conclusion that Respondent is not commonly known by the domain name based on Complainant’s mark or by any variation thereof. Policy ¶ 4.c.(ii). Respondent is not using the domain name in connection with a bona fide offering of goods and services. Policy ¶ 4.c.(i).

Thus, based upon the previously stated considerations, the Panel finds that Respondent has no rights or legitimate interests in the domain name ALTAVISTAQ.COM.

The evidence supports a finding that Respondent’s registration and use of the domain name in question was in bad faith. Respondent not only misspelled Complainant’s famous mark by adding a "Q", Respondent diverted users of the Internet seeking Complainant’s site to Respondent’s pornographic web site for apparent commercial gain. This demonstrates bad faith. Respondent’s actions further have created a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website, product or service of its web site. This evidences bad faith. See CCA Industries, Inc. v. Bobby R. Dailey, D2000-0148 (WIPO April 26, 2000) (association of confusingly similar domain name with pornographic website can constitute bad faith); see also Bama Rags, Inc. v. John Zuccarini, FA 94381 (Nat. Arb. Forum May 8, 2000) (finding bad faith where domain names registered and used with different typographical errors of Complainant’s mark).

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief should be and is hereby granted.

Accordingly, it is ordered that the domain name altavistaq.com be transferred from Respondent to Complainant.