DECISION

InfoSpace, Inc. v. South EastEnterprise, Inc.

Claim Number:  FA0401000231728

PARTIES

Complainant is InfoSpace, Inc. (“Complainant”) represented by Gerard A. Taylor, of Stokes Lawrence PS, 800 Fifth Ave., Suite 4000, Seattle, WA 98104-3179.  Respondent is South EastEnterprise, Inc. (“Respondent”), 7 rue du Mont Blanc, Geneva, Geneva CH-1201.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwwebcrawler.net>, registered with Network Solutions, Inc.

PANEL

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

Honorable Paul A. Dorf (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 27, 2004; the Forum received a hard copy of the Complaint on January 29, 2004.

On January 28, 2004, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <wwwwebcrawler.net> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On February 3, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 23, 2004 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@wwwwebcrawler.net 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 March 10, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Honorable Paul A. Dorf (Ret.) 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 Rules for Uniform Domain Name Dispute Resolution Policy (the "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.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <wwwwebcrawler.net> domain name is confusingly similar to Complainant’s WEBCRAWLER and WEBCRAWLER DIRECT marks.

2. Respondent does not have any rights or legitimate interests in the <wwwwebcrawler.net> domain name.

3. Respondent registered and used the <wwwwebcrawler.net> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, InfoSpace, Inc., is a leading global provider of wireless and Internet software and provides application services to leading wireless and broadband providers, websites, and merchant resellers. Complainant provides directory services on the Internet, offering access to information on a variety of subjects, search engines to obtain data on the Internet and brokerage of electronic commerce transactions conducted on the Internet. Complainant, by assignment, holds trademark registrations with the Untied States Patent and Trademark Office for the WEBCRAWLER mark (Reg. No. 2,00,916, issued April 20, 1994) and the WEBCRAWLER DIRECT mark (Reg. No. 2,397,081, issued January 1, 1999) for computer programs and telecommunications services, including Internet services.

Complainant operates a website at the domain name <webcrawler.com>. Customers can use this website to locate and retrieve information on computer networks via the Internet.

Respondent registered the <wwwwebcrawler.net> domain name on December 23, 2003. Respondent is using the disputed domain name to divert Internet users intended for Complainant’s website to a website that provides search engine services.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that 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 or confusingly similar to a trademark or service mark in which Complainant has rights; and

(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.

Identical and/or Confusingly Similar

Complainant has established rights to the WEBCRAWLER and WEBCRAWLER DIRECT marks through registration with the United States Patents and Trademark Office.

Respondent’s <wwwwebcrawler.net> domain name is confusingly similar to Complainant’s WEBCRAWLER mark because it merely places a string of letters, “www,” before Complainant’s mark. The placement of the letters “www” before Complainant’s mark capitalizes on a common typing error. Internet users who type Complainant’s mark into the URL but do not type the period between the “www” and WEBCRAWLER will be unwillingly diverted to Respondent’s website. The addition of the “www” before Complainant’s mark does not therefore create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Complainant urges that Respondent has no rights or legitimate interests in the disputed domain name. Based on Respondent’s failure to respond to the Complainant, it is assumed that Respondent lacks rights and legitimate interests in the disputed domain name. When Complainant asserts a prima facie case against Respondent, the burden shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).

Furthermore, because Respondent has not submitted a Response, it is appropriate for the Panel to accept all reasonable allegations and inferences in the Complaint as true. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Respondent is using the disputed domain name to divert Internet users to a website that features search and information services similar to Complainant’s search services. The use of a domain name confusingly similar to a mark to offer the same or similar services as those offered under the mark in competition with Complainant’s services is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Clear Channel Communications, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that Respondent, as a competitor of Complainant, had no rights or legitimate interests in a domain name that utilized Complainant’s mark for its competing website); see also Winmark Corp. d/b/a Play It Again Sports v. In The Zone a/k/a Giant Sports Factory, FA 128652 (Nat. Arb. Forum Dec. 6, 2002) (finding that Respondent had no rights or legitimate interests in a domain name that used Complainant’s mark to redirect Internet users to a competitor’s website).

            The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent registered the disputed domain name for its own commercial gain. Respondent’s domain name diverts Internet users to its own website through the use of a confusingly similar domain name.  Respondent’s commercial use of a domain name confusingly similar to Complainant’s mark evidences registration and use in bad faith under the UDRP pursuant to ¶ 4(b)(iv). See America Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that Respondent intentionally attempted to attract Internet users to his website for commercial gain by creating a likelihood of confusion with Complainant’s mark and offering the same chat services via his website as Complainant); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks).

Furthermore, Respondent is engaged in a practice called “typosquatting.” This practice diverts Internet users who misspell Complainant’s mark to a website sponsored by Respondent for Respondent’s commercial gain. The practice of “typosquatting” itself evidences bad faith use of a domain name under the UDRP pursuant to Policy ¶ 4(a)(iii). See Black & Decker Corp. v. Azra Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the “www” portion of [a] web-address,” evidence that the domain name was registered and used in bad faith); see also Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (holding that “[t] absence of a dot between the “www” and “canadiantire.com” [in the <wwwcanadiantire.com> domain name is] likely to confuse Internet users, encourage them to access Respondent’s site” and evidenced bad faith registration and use of the domain name).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <wwwwebcrawler.net> domain name be TRANSFERRED from Respondent to Complainant.

Honorable Paul A. Dorf (Ret.), Panelist

Dated:  March 22, 2004

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