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Generic Top Level Domain Name (gTLD) Decisions |
DECISION
AltaVista Company v Domainforsale
Claim Number: FA0008000095500
PARTIES
The Complainant is AltaVista Company, Palo Alto, CA, USA ("Complainant"). The Respondent is Domainfor Sale, Quito, Ecuador ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is "altavizta.com", registered with Network Solutions.
PANELIST(s)
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 the panelist in this proceeding.
R. Glen Ayers has been selected as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on August 28, 2000; The Forum received a hard copy of the Complaint on August 28, 2000.
On September 05, 2000, Network Solutions confirmed by e-mail to The Forum that the domain name altavizta.com is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions ha s verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.
On September 6, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 26, 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@altavizta.com by e-mail.
On October 2, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed R. Glen Ayers as Panelist.
RELIEF SOUGHT
The Complainant requests that the domain name be transferred from the Respondent to the Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant asserts that is holds a famous trademark, "Alta Vista" and certain variations of that name (the "Marks") and that the Marks refer to its Internet Search engine.
Plaintiff assets the Marks are registered or pending registration in over 100 countries and that the Marks have been registered in Equador since 1998.
Complainant asserts that Respondent registered a domain name, "altavizta.com" in 1999 from an address in Washington, D.C., USA. It then changed the registration to Equador.
Complainant asserts that the name is confusingly similar to the Marks. Until August 4, 2000, Complainant alleges that if its Marks had been mistyped on the Internet, and if "altavizta.com" had been entered in error, the Internet user wo uld have been directed to a "domain for sale" page. After that date, the mistyped name led to a website called "Mr. Guide," which contained the name of several search engines, including the Complainant’s name.
Complainant also alleges that it contacted the Respondent, who demanded $25,000.00 for the domain name.
The Complainant alleges that the Respondent has no legitimate interests in the domain name and is not Complainant’s licensee.
Complainant also asserts that the name was registered in bad faith with the intent to: (1) confuse Internet users; (2) divert potential users to the Respondent’s cite; and (3) disrupt Internet traffic.
Of course, Complainant asserts that the attempt to sell is evidence of bad faith.
B. Respondent
Respondent filed a response in which it asserts that the term or name "Alta Vizta" is a commonly used name in virtually every area of Central or South America. The Respondent assets that it intends to use the domain "altavizta.com" in order to develop a website for the "Alta Vizta" area in Equador.
Respondent denies that it ever attempted to or asserted that it would sell the domain name for the sum of $25,000.00 but does state that it was willing to sell it for $1,000.00, in order to avoid trouble.
FINDINGS
Identical or Confusingly Similar
The Respondent’s domain name is confusingly similar to the Complainant’s Marks, including ALTAVISTA. See AltaVista Company v. Jean-Daniel Gamache, FA 95249 (Nat. Arb. Forum Aug. 17, 2000) (finding that the domain name < ;ALTAIVSTA.COM> is confusingly similar with the Complainant’s mark); Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com> (with zero in place of letter O) is confusingly similar to Complainant’s mark by exploiting upon likely mistakes by users when entering the URL address); Ziegenfelder Co. v. VMH Enterprises, Inc. D2000-0039 (WIPO Mar. 14, 2000) (finding confusing similarity between the Respond ent’s domain name, <budgetsaver.com> and the Complainant’s mark, Budget$aver).
No Rights or Legitimate Interests
The Respondent is not commonly known by the mark "ALTA VIZTA" [Policy 4.c.(ii)];
The Respondent is not using the domain name in connection with a bona fide offering of goods or services [Policy ¶ 4.c.(i)];
The Respondent is not using the domain name for a fair or legitimate noncommercial use [Policy ¶ 4.c.(iii)].
See Compangnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark or never applied for a license or permission from the Complainant to use the trademarked name);
Wal-Mart Stores, Inc. v. Walmarket Canada, D2000-0150 (WIPO May 2, 2000) (finding that the Respondent had no rights or legitimate interests where he decided to develop the website for the sale of wall products after receiving the Complainant’s "cease and desist" notice);
Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1)Respondent is not a licensee of Complainant; (2) Complainant’s prior righ ts in the Marks precede Respondent’s registration of the domain name; (3) Respondent is not commonly known by the domain name in question).
Bad Faith
The Respondent is clearly using the domain name in bad faith.
The Respondent’s registration and use of the domain name:
Disrupts the Complainant’s business;
Attracts Internet users, for commercial gain, to the Complainant’s site by causing confusion as to the sponsorship, source, affiliation, or endorsement of the Respondent’s website. [Policy ¶ 4.b.(iv)]
See Encyclopaedia Britannica Inc. v Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that the Respondent violated Policy ¶ 4.b.(iv) by using the domain name <britannnica.com> to hyperlink to a gambling site).
See also Pfizer Inc. v. Deep Soni and Ashok Soni, D2000-0782 (WIPO Aug. 29, 2000) (stating that the Panel was skeptical of the Respondent’s unsubstantiated story about wanting to create a website, <pfizerindia.com>, devoted to German benef actors Jeffrey Pfizer and his family).
Of course, the offer to sell is clear evidence of bad faith. [Policy ¶ 4.b.(iv)].
Copies of the opinions in full can be located at each of the following websites:
National Arbitration Forum: www.arb-forum.com/domains
Resolution:
www.eresolution.ca/services/dnd/decisions.htmWIPO:
www.arbiter.wipo.int/domains/decisions/index.htmlCPR:
www.cpradr.org/ICANN_Menu.htm
DISCUSSION
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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
The Panelist finds that the domain name is confusingly similar to the Marks.
Rights or Legitimate Interests
The Panelist finds that the Respondent has no rights or legitimate interests in the Marks or the domain name. Further, the Panelist specifically finds that the Respondent’s alleged "intent" to develop a domain name for a geographica l area located in Equador is not credible.
Registration and Use in Bad Faith
The Panelist finds that the registration in use has been in bad faith as evidenced by the negotiations to sell the domain name. The Panelist finds that the Respondent’s contention that it did not offer to sell the name for $25,000.0 0 is not credible.
DECISION
The domain name shall be transferred from Respondent to Complainant.
R. Glen Ayers, PanelistDated: October 24, 2000
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URL: http://www.worldlii.org/int/other/GENDND/2000/1289.html