Generic Top Level Domain Name (gTLD) Decisions

The Complainant is AltaVista Company, Palo Alto, CA, USA ("Complainant"). The Respondent is West Coast Entertainment, Inc., Simi Valley, CA, USA ("Respondent").

The domain name at issue is "ALTAVESTA.COM", registered with Network Solutions Inc ("NSI").

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 07/20/2000; The Forum received a hard copy of the Complaint on 07/20/2000.

On 07/24/2000, NSI confirmed by e-mail to The Forum that the domain name "ALTAVESTA.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís UDRP.

On 07/24/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 08/14/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, and to all entities and persons listed on Respondentís registration as technical, administrative and billing contacts by e-mail. It was also emailed to postmaster@altavesta.com.

On 08/16/2000, 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 08/17/2000, pursuant to Complainantís request to have the dispute decided by a Single 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. Complainant

Complainant asserts that Respondent attempts to disrupt Complainantís business by marketing pornography under a domain name that is confusingly similar to the Complainantís famous trademarks and that Respondent violates Policy  4.a.(i) ń (iii).

Complainant contends that Respondentís registration and use of a confusingly similar variation of Complainantís well-known mark are inherently deceptive and clearly done with bad faith intent. Complainant asserts that Respondent knew of Complainantís internationally famous mark upon registering the domain name in question.

B. Respondent

The Respondent submitted no response in this UDRP matter.

ICANN Uniform Rule 14(b) provides that, absent exceptional circumstances, the Panel shall draw inferences, as it deems appropriate, from the failure of a party to comply with a provision or requirement of the Uniform Rules. As a result, all reasonable inferences asserted in the Complaint will be deemed true.

Complainant is a 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 1995. Complainant owns trademark registrations or has pending trademark applications in over one hundred countries around the world and has owned the domain name <altavista.com> since December 1995.

Respondentís domain name resolves to a website that encourages users to enter Respondentís website <ashleysplayground.com>, a fee-based pornographic website.

Respondent has registered many other domain names that contain common misspellings of other famous trademarks. For example, Respondent registered the domain names <panasonik.com> and <prodegy.com>. Both of these domain names link to websites that promote the services at <ashleysplayground.com>. The Respondent also owns other domain names that contain variations of famous trademarks including, <espm.com>, <espns.com>, and <realaudi.com>.

Complainantís attorney sent a letter to Respondent on 06/02/2000 demanding that the Respondent "cease and desist" its use of the domain name in question. The letter, sent to the address listed on the WHOIS page, was returned to the Complainantís attorney as undeliverable. Complainantís attorney also attempted to send an email to the Respondent; however, it was also returned as undeliverable due to an address error.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires Complainant to 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.

Complainant has established rights in the registered trademark, ALTAVISTA. Respondentís domain name is confusingly similar to Complainantís mark. The only difference between the two names is the substitution of the letter "e" for the letter "i" in the Complainantís mark. UDRP Panels in prior cases have found that misspellings or typographical variations of famous marks are confusingly similar. See Sunglass Hut Corp. v. AAANET, Inc., FA 94370 (Nat. Arb. Forum May 11, 2000) (finding that the domain name <sunglasshot.com> is confusingly similar to the mark SUNGLASS HUT); Hewlett Packard Co. v. Cupcake City, FA 93562 (Nat. Arb. Forum Apr. 7, 2000) (finding that the domain name <hewlittpackard.com> is confusingly similar to mark HEWLETT PACKARD). The panel concludes that the domain name in question is confusingly similar to the Complainantís mark.

Complainant asserts that Respondent has no rights or legitimate interests in the domain name in question. The Respondent does not deny this assertion.

Respondent is profiting by redirecting Internet users seeking Complainantís website to a pornographic site. Respondentís use of the website at "ALTAVESTA.COM" to attract Internet users to <ashleysplayground.com> is not a bona fide offering of goods and services or a legitimate noncommercial use of a domain name. Policy  4.c.(i), (iii). 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).

Respondent is not commonly known by the domain name in question or the Complainantís well-known mark ALTAVISTA. Policy  4.c.(ii). On the website in question, Respondent makes no use of the term ALTAVESTA that might justify use of the term. 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). Respondent has not used ALTAVESTA prior to its registration of the domain name in question. Respondent is not a licensee of Complainant nor otherwise authorized to use the Complainantís mark.

The Panel determines that the Respondent has no rights or legitimate interests in the domain name in question.

Complainant asserts that Respondent has registered and used the domain name "ALTAVESTA.COM" in bad faith. Based on the multiple circumstances below, the Panel concludes that the Respondent has violated Policy  4.a.(iii).

Respondent has provided false registration information to the Registrar, including false email addresses and mail addresses. This is evidence of bad faith. See Quixtar Investments, Inc. v. Smithberger and QUIXTAR-IBO, D2000-0138 (WIPO April 19, 2000) (finding that use of false registration information constitutes bad faith).

Respondent has registered and used other domain names with common misspellings of famous marks, such as <panasonik.com> and <prodegy.com>. This demonstrates a pattern of bad faith intended to misleadingly divert users to Respondentís website. See Bama Rags, Inc. v. Zuccarini, d/b/a Cupcake Confidential, FA 94381 (Nat. Arb. Forum May 8, 2000) (finding that the Respondentís registration of names of famous people, with slight typographical errors, was evidence of bad faith).

Respondent registered and used the domain name to intentionally attract Internet users to its website by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship, or affiliation of the Respondentís website. Policy  4.b.(iv). Respondent commercially profits by increased exposure to and use of its website. Policy  4.b.(iv). See America Online, Inc. v. Tencent Communications Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the Respondent attracted users to a website sponsored by the Respondent).

Associating a confusingly similar domain name with a pornographic website also constitutes 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).

Based on the above, the Panel determines that the Respondent registered and used the domain name in bad faith.

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, "ALTAVESTA.COM", be transferred from Respondent to Complainant.

Honorable Carolyn Marks Johnson