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 Lars Fleck, Altenburg - 04600, Germany ("Respondent").

The domain name at issue is altavisza.com registered with CORE.

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 September 28, 2000; The Forum received a hard copy of the Complaint on September 28, 2000.

On October 2, 2000, CORE confirmed by e-mail to the Forum that the domain name altavisza.com is registered with CORE and that Respondent is the current registrant of the name. CORE has verified that Respondent is bound by the CORE registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On October 3, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 23, 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@altavisza.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 October 31, 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.

B. Respondent did not respond to the complaint.

Complainant, AltaVista Company, is a world-renowned provider of Internet search, information, e-commerce, and portal services. Complainant has been using the mark ALTAVISTA to identify its company and Internet services since December of 1995.

Complainant owns registrations numerous trademark registrations worldwide. Complainant owns the domain name altavista.com and has operated a web site at altavista.com since December of 1995.

Respondent registered the domain name altavisza.com in December of 1999. The site has been used to direct Internet users to various web sites including merktsichgut.de, mails.dyns.cx, and sexxi.de. As of September 26, 2000, the sexxi.de domain name identified a site that promotes and displays sexually explicit and pornographic material, and directs users to other pornographic web sites.

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 the Respondent is identical or confusingly similar to a trademark or service mark in which the 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.

In several UDRP decisions, Complainant has established its rights in the ALTAVISTA mark; AltaVista Company v. Jean-Daniel Gamache, FA 95249 (Nat. Arb. Forum Aug. 17, 2000); AltaVista Company v. Global Net 2000 Inc., FA 95483 (Nat. Arb. Forum Oct. 10, 2000); AltaVista Company v. DomainforSale, FA 95500 (Nat. Arb. Forum Oct. 24, 2000); AltaVista Company v. Andrew Krotov, D2000-1091 (WIPO October 25, 2000).

In addition, the above decisions have respectively held that the domain names altaivsta.com, ltavista.com, altavizta.com, and altavisga.com are confusingly similar to Complainant’s ALTAVISTA mark.

Further, the above decisions are in accord with a growing number of other UDRP decisions which have held that one letter variations and misspellings of protected marks are confusingly similar and violate ICANN Policy ¶ 4(a)(i). See America Online, Inc. v. Tencent Communications Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to Complainant’s mark, ICQ); Cream Pie Club v. Britany Halford, FA95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that "the addition of an "s" to the end of the Complainant’s mark, "Cream Pie" does not prevent the likelihood of confusion caused by the use of the remaining identical mark. The domain name <creampies.com> is similar in sound, appearance, and connotation").

Therefore, this Panel finds that the domain name altavisza.com is identical or confusingly similar to Complainant’s ALTAVISTA mark.

Respondent has not asserted any rights or legitimate interests in respect of the domain name. Since Respondent failed to respond to the complaint, this panel is entitled to decide the dispute based upon the complaint. See ICANN Rules ¶ 5(e). From the evidence presented regarding Respondent’s use of the domain name to direct internet users to web sites unrelated to the altavisza.com domain name, it appears that Respondent does not have any rights or legitimate interest in the domain name. His only interest appears to be to divert internet users seeking altavista.com to his own affiliated web sites. See Nokia Corp. v. Nokiagirls.com aka IBCC, D2000-0102 (WIPO Apr. 18, 2000) (finding that Respondent has no rights or legitimate interests in the domain name <nokiagirls.com> because there was no element on website that would justify use of the word NOKIA within the domain name).

Based upon Respondent’s conduct, this Panel finds that the domain name was registered and is being used in bad faith. In light of Respondent’s lack of rights or legitimate interest in the domain name, it is difficult to see how his registration is not in bad faith. See CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding bad faith where Respondent failed to provide any evidence to controvert Complainant's allegation that it registered the domain name in bad faith and where any future use of the domain name would do nothing but cause confusion with the Complainant’s mark, except in a few limited noncommercial or fair use situations, which were not present).

Most tellingly, Respondent has used the domain name to divert internet users to a pornographic web site. A long line of UDRP decisions indicates that such conduct is evidence of bad faith. See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith); Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000) (finding bad faith where Respondent attracted users to his website for commercial gain and linked his website to pornographic web sites).

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the Panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, altavisza.com be transferred from Respondent to Complainant.