DECISION

Save the Children Federation, Inc. v. Mike Flynn a/k/a mf

Claim Number:  FA0402000241938

PARTIES

Complainant is Save the Children Federation, Inc. (“Complainant”), represented by William G. Pecau, of Steptoe & Johnson LLP, 1330 Connecticut Ave. NW, Washington, DC 20036.  Respondent is Mike Flynn a/k/a mf (“Respondent”), 425 W. 58^th St., New York, NY 10019.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <savethechildern.org>, registered with Network Solutions, Inc.

PANEL

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

Louis E. Condon as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 25, 2004; the Forum received a hard copy of the Complaint on February 25, 2004.

On February 27, 2004, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <savethechildern.org> 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 March 3, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 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@savethechildern.org 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 31, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Louis E. Condon 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 <savethechildern.org> domain name is confusingly similar to Complainant’s <SAVE THE CHILDREN> mark.

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

3. Respondent registered and used the <savethechildern.org> domain name in bad faith.

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

FINDINGS

Complainant, Save the Children Federation, Inc., is a not-for-profit corporation that provides fund-raising, education and other assistance to impoverished children of all ages in the United States and throughout the world. Save the Children has operated since 1939 and is one of the most famous charities in the United States.

Complainant holds several trademark registrations with the United States Patent and Trademark Office for the SAVE THE CHILDREN mark (Reg. No. 991,617, issued August 20, 1974 and Reg. No. 2,582,204, issued June 18, 2002).

Complainant’s main website is located at the <savethechildren.org> domain name where Complainant furthers its charitable goals by explaining its mission and programs to help children and reaching out to potential volunteers, sponsors and donors. Complainant has maintained this website since 1995.

Respondent is using the domain name to divert Internet traffic to a series of websites that show graphic pictures of aborted fetuses at <abortiontruth.com> and <abortionismurder.org>, and websites that promote social and political agendas at <thetruthpage.com>. These websites are completely unrelated to Complainant’s charitable 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 in the SAVE THE CHILDREN mark through registration with the United States Patent and Trademark Office and through continued use of the mark in commerce for the last thirty years. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”); see also Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of the said name [<keppelbank.com>] in connection with its banking business, it has acquired rights under the common law).

Respondent’s domain name is confusingly similar to Complainant’s SAVE THE CHILDREN mark because the domain name merely transposes the letters “r” and “e” in the word “children,” thus capitalizing on a common typing error made by Internet users. Internet users who type Complainant’s mark into the URL but mistakenly misspell “children” will be unwillingly diverted to Respondent’s website. Transposing letters in a word in Complainant’s mark does not remove the domain name from the realm of confusing similarity with regard to Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding that the domain names, <davemathewsband.com> and <davemattewsband.com>, are common misspellings and therefore confusingly similar); see also Victoria's Secret v. Internet Inv. Firm Trust, FA 94344 (Nat. Arb. Forum May 9, 2000) (finding the domain name <victoriasecret.com> to be confusingly similar to Complainant’s trademark, VICTORIA’S SECRET).

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

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 Complaint, it is assumed that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant establishes a prima facie case, the burden shifts to Respondent to show that it does have 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that under certain circumstances the mere assertion by Complainant that Respondent has no right or legitimate interest is sufficient to shift the burden of proof to Respondent to demonstrate that such a right or legitimate interest does exist).

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 Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”); see also 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).

Respondent is using the domain name, which is confusingly similar to Complainant’s mark, to benefit from Complainant’s goodwill and to divert Internet traffic intended for Complainant to websites that show graphic pictures of aborted fetuses at <abortiontruth.com> and <abortionismurder.com> as well as an opinion site at <thetruthpage.com>. The use of a domain name confusingly similar to Complainant’s mark to redirect Internet users interested in Complainant’s services to graphic and politically charged websites that are completely unrelated to Complainant’s charitable services does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor does it represent a legitimate noncommercial or fair use of the name pursuant to Policy ¶ 4(c)(iii). See U.S. Franchise Sys., Inc. v. Howell III, FA 152457 (Nat. Arb. Forum May 6, 2003) (holding that Respondent’s use of Complainant’s mark and the goodwill surrounding that mark as a means of attracting Internet users to an unrelated business was not a bona fide offering of goods or services); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use); see also Prudential Ins. Co. of Am. v. Stonybrook Invs., LTD, FA 100182 (Nat. Arb. Forum Nov. 15, 2001) (finding no rights or legitimate interests in the disputed domain name where Respondent was using Complainant’s mark to redirect Internet users to a website offering credit card services unrelated to those services legitimately offered under Complainant’s mark).

Moreover, Respondent has offered no proof and there is no evidence in the record suggesting that Respondent is commonly known by the SAVE THE CHILDREN mark. Thus, Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

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

Registration and Use in Bad Faith

Four circumstances are listed under Policy ¶ 4(b) that, if proven, evidence bad faith use and registration of a domain name. However, additional factors can also evidence bad faith registration and use. See Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the “totality of circumstances”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“the examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive”); see also Home Interiors & Gifts, Inc. v. Home Interiors, D2000-0010 (WIPO Mar. 7, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in ¶4(b), does not mean that the domain names at issue were not registered in and are not being used in bad faith”).

Sufficient evidence exists in the record to suggest that Respondent registered and used the disputed domain name in bad faith. First, Respondent used a confusingly similar domain name to redirect Internet users who intended to search under Complainant’s mark to a website that provided graphic images of aborted fetuses and politically charged content, websites unrelated to Complainant’s charitable services. Furthermore, the websites that Internet users were directed to when searching under Complainant’s mark capitalize on the goodwill Complainant established under its mark and likely tarnish Complainant’s mark. Intentionally taking advantage of the goodwill of a Complainant’s mark to further a political agenda and increase traffic to a website is evidence of bad faith registration and use. See McClatchy Management Services, Inc. v. Please DON'T Kill Your Baby FA 153541 (Nat. Arb. Forum May 28, 2003) (finding “[b]y intentionally taking advantage of the goodwill surrounding Complainant’s mark to further its own political agenda, Respondent registered the disputed domain names in bad faith”); see also Journal Gazette Co. v. Domain For Sale Inc., FA 12202 (Nat. Arb. Forum Oct. 9, 2002) (finding “Respondent chose the domain name to increase the traffic flowing to the <abortionismurder.org> and <thetruthpage.com> websites”); see also Bank of Am. Corp. v. Out Island Props., Inc., FA 154531 (Nat. Arb. Forum June 3, 2003) (stating that “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website” in holding that the domain names were registered and used in bad faith pursuant to Policy ¶ 4(b)(iv)).

Respondent’s registration of Complainant’s mark in its entirety except for the mere transposition of two letters, suggests that Respondent had knowledge of Complainant’s charitable services and associated reputation. Thus, Respondent likely knew Complainant had rights in the SAVE THE CHILDREN mark and chose the <savethechildern.org> domain name based on its distinctive qualities. Furthermore, Complainant’s registration of its mark with the United States Patent and Trademark Office confers constructive knowledge of Complainant’s rights in the mark on Respondent. Constructive knowledge of rights in a mark at the time of registration evidences bad faith registration. See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof.”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the worldwide prominence of the mark and thus Respondent registered the domain name in bad faith); see also Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.”).

Moreover, Respondent is engaged in a practice called “typosquatting.” Respondent engaged in typosquatting when he used the domain name to divert 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 Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“in typosquatting cases, such as this one, it would be difficult for Respondent to prove to the Panel that it did not have actual knowledge of Complainant’s distinctive MEDLINE mark when it registered the infringing <wwwmedline.com> domain name”); see also Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Black & Decker Corp. v. 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).

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

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.

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

Louis E. Condon, Panelist

Dated:  April 9, 2004

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