Generic Top Level Domain Name (gTLD) Decisions

Complainant is Alta Vista Company, Palo Alto, CA, USA ("Complainant") represented by Laurie S Gill, Palmer & Dodge LLP. Respondent is Choi Sun ys co., Irvine, CA, USA ("Respondent").

The domain name at issue is artavista.com registered with Network Solutions.

The Panelist certifies that she has acted independently and impartially and to the best of her knowledge 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 17, 2000; The Forum received a hard copy of the Complaint on October 13, 2000.

On October 17, 2000, Network Solutions confirmed by e-mail to the Forum that the domain name artavista.com is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has 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 ICANNís UDRP.

On October 20, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 9, 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 Respondentís registration as technical, administrative and billing contacts, and to postmaster@artavista.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 November 15, 2000, pursuant to Complainantís 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 Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

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

A. Complainantís allegations include the following:

B. Respondent did not submit a response in this matter.

Complainant, Alta Vista Company, has been using the ALTAVISTA mark to identify its company and services since December 1995 and owns numerous trademark registrations around the world for ALTAVISTA. Complainant has operated a web site identified by the domain name altavista.com since December 1995.

Respondent registered the domain name artavista.com in early 1999. For some time, Respondent has used the domain name to offer a variety of links to pornographic web sites operated either by Respondent or its affiliates.

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 a Respondent is identical 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.

With one slip of the finger an internet user is diverted from the ALTAVISTA search engine to Respondentís site, which features sexually explicit and pornographic content. The substitution of the letter "r" for an "l" by Respondent is the epitome of confusing similarity and precisely the type of domain name registration that the UDRP seeks to protect against. See e.g. 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). The Panel finds that the domain name artavista.com is confusingly similar to Complainantís ALTAVISTA mark.

Respondent has failed to submit a response in this manner. By submitting a response, Respondent could have asserted and provided evidence to substantiate claims of right or legitimate interests in the domain name artavista.com. In failing to respond, Respondent has left the Panel to make its determination based on Complainantís evidence alone. Complainant alleges, and Respondent apparently does not dispute, that a) Respondent is not a licensee of Complainant, b) Respondent is not commonly known as ARTAVISTA, c) Respondent is not making a bona fide offering of goods or services which is not calculated to mislead consumer or tarnish Complainantís ALTAVISTA mark. See MatchNet plc. V. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that it is not a bona fide offering of goods or services to use a domain name for commercial gain by attracting Internet users to third party sites offering sexually explicit and pornographic material where such use is calculated to mislead consumers and to tarnish the Complainantís mark). Therefore, this panel finds, based on the evidence presented, that Respondent does not have a right or legitimate interest in the domain name artavista.com.

Based on the notoriety of Complainantís mark and the substantial similarity between Complainantís mark and the domain name at issue, it can be inferred that Respondent registered the domain name artavista.com in bad faith. See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum, April 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration).

Further, Respondentís particular use of the artavista.com domain name is also evidence of use in bad faith. An Internet user that mistypes Complainantís domain name is diverted to Respondentís site and finds a menu listing Respondentís ëfeaturedí sites. Users that click on any of the links provided are "moustrapped" by a barrage of windows, which ultimately force a user to shut down the computer. See Electronics Boutique Holding Corp., v. Zuccarini, (No. 00-4055), 2000 U.S. Dist. Lexis 15719, (E.D.PA Oct. 30, 2000) ("When a potential or existing online customer, attempting to access EB's website, mistakenly types one of Mr. Zuccarini's domain misspellings, he is "mousetrapped" in a barrage of advertising windows, featuring a variety of products, including credit cards, internet answering machines, games, and music. The Internet user cannot exit the Internet without clicking on the succession of advertisements that appears. Simply clicking on the "X" in the top right-hand corner of the screen, a common way to close a web browser window, will not allow a user to exit").

Such use of Complainantís ALTAVISTA mark, first to misdirect Internet users, and second to profit commercially from their mistake, clearly represents use in bad faith. See 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 websites).

The Panel finds that Respondent registered and continues to use the artavista.com domain name in bad faith.

Having established all three elements required under the ICANN Policy, the Panel finds that the requested relief should be granted. Accordingly, it is ordered that the domain name artavista.com be transferred from Respondent to Complainant.