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Generic Top Level Domain Name (gTLD) Decisions |
CEC
Entertainment, Inc. v. Anthony Peppler aka RealTimeInternet.com, Inc.
Claim
Number: FA0202000104208
PARTIES
Complainant is CEC Entertainment, Inc., Irving, TX
(“Complainant”) represented by Nicole B.
Emmons, of Baker & McKenzie. Respondent is Anthony Peppler RealTimeInternet.com, Inc., Fort Wayne, IN
(“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at
issue is <chuckcheese.com>,
registered with Stargate Communications,
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.
John J. Upchurch as
Panelist.
PROCEDURAL
HISTORY
Complainant submitted
a Complaint to the National Arbitration Forum (the “Forum”) electronically on February
5, 2002; the Forum received
a hard copy of the Complaint on February 8, 2002.
On February 5, 2002, Stargate
Communications, Inc. confirmed by e-mail to the Forum that the domain name <chuckcheese.com> is registered with
Stargate Communications, Inc. and that Respondent is the current registrant of
the name. Stargate Communications, Inc.
has verified that Respondent is bound by the Stargate Communications, 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 February 13, 2002,
a Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”),
setting a deadline of March 5, 2002 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@chuckcheese.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 March 12, 2002,
pursuant to Complainant’s request to have the dispute decided by a
single-member Panel, the Forum appointed John
J. Upchurch 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
1. The <chuckcheese.com> domain name is nearly identical and is
certainly confusingly similar to Complainant’s CHUCK E. CHEESE mark.
2. Respondent did not receive a license to use Complainant’s mark and is
not commonly known as <chuckcheese.com>. Further,
Respondent’s use of the disputed domain name is not in connection with a bona
fide offering of goods or services and is not
a legitimate noncommercial or
fair use. Therefore, Respondent has no
rights or legitimate interests in <chuckcheese.com>.
3. Respondent’s registration and use of the disputed domain name is an
attempt to attract for commercial gain, Internet users to its
website, by
creating a likelihood of confusion with Complainant’s mark as to the source,
sponsorship, affiliation, or endorsement
of Respondent’s website. Further, Respondent’s registration of the
disputed domain name prevents Complainant from reflecting the marks in
corresponding domain
names important to its business, and therefore,
intentionally disrupts Complainant’s business.
Therefore, Respondent registered and used the disputed domain name in
bad faith.
B. Respondent
No Response was
received.
FINDINGS
Complainant
is the owner and operator of a chain of restaurant/entertainment facilities,
both nationwide and in several countries
outside of the United States, known as
CHUCK E. CHEESE’S. Complainant has registered
several marks with the United States Patent and Trademark Office including;
CHUCK E. CHEESE’S, registered
on April 22, 1977, Registration Number 2,055,026;
and CHUCK E. CHEESE was registered August 3, 1982, Registration Number
1,203,974. As the result of marketing
and promoting its marks, Complainant has become one of the nation’s largest
restaurant and entertainment
providers to children ages 2-12 years-old.
Respondent
registered the disputed domain name <chuckcheese.com>
on April 18, 2001. Respondent’s domain name came to the
attention of Complainant by concerned parents regarding their children’s
accidental access to
Respondent’s website.
The children intended to visit Complainant’s site at <chuckecheese.com>
or <chuckecheeses.com>. The concern
about Respondent’s website is that it acts as a mousetrap: once the user
accesses the site, the user is subjected to numerous
advertisements for varied
commercial enterprises, including Internet gaming and gambling websites.
Complainant has made several requests that
Respondent cease and desist and still has not received an answer.
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 the 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 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; and
(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
Complainant
has established its rights to CHUCK E. CHEESE through federal registration and
subsequent use. The <chuckcheese.com> domain
name is confusing similar to CHUCK E. CHEESE. The only difference between the disputed domain name and
Complainant’s mark is the exclusion of “e.”.
Such a change does not diminish the confusing similarity between the
famous mark and the disputed domain name.
See Victoria’s
Secret et al. v. Zuccarini,
FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that
misspelling words and adding letters on to words does not create a distinct
mark but is nevertheless
confusingly similar with Complainant’s marks). Hewlett-Packard Co. v. Zuccarini, FA
94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name
<hewlitpackard.com> to be identical or confusingly similar
to
Complainant’s HEWLETT-PACKARD mark); see also Target Brands,
Inc. v. Zuccarini, FA 99683 (Nat. Arb. Forum Oct. 18, 2001) (finding the
domain name <marshalfield.com> confusingly similar with Complainant’s
mark MARSHALL FIELD’S).
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights
or Legitimate Interests
Respondent
has failed to file a Response in this matter.
Therefore, the Panel may presume
that Respondent has no rights or legitimate interests in <chuckcheese.com>. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as
an admission that they have no
legitimate interest in the domain names).
There
is evidence that Internet users intended to visit Complainant’s website, and by
misspelling Complainant’s trademark, were diverted
to Respondent’s website in
which Respondent benefited commercially by inundating the user with various
Internet advertisements. Such use of <chuckcheese.com>
is not a bona fide offering of goods or services pursuant to policy ¶
4(c)(i). See Toronto-Dominion Bank v. Karpachev,
D2000-1571 (WIPO Jan. 15, 2001) (finding no rights or legitimate interests
where Respondent diverted Complainant’s customers to
his websites); see also
Vapor Blast Mfg. Co. v. R & S Tech.,
Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s
commercial use of the domain name to confuse and divert Internet
traffic is not
a legitimate use of the domain name).
Respondent
is known as Anthony Peppler or RealTimeInternet.com, Inc., and has not
presented any evidence that he has been or is currently
known as <chuckcheese.com>. Therefore,
Respondent has failed to satisfy Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb.
5, 2001) (finding no rights or legitimate interests because Respondent is not
commonly known by
the disputed domain name or using the domain name in
connection with a legitimate or fair use).
A
misspelling of a famous mark, like CHUCK E. CHEESE, in connection with a
commercial use can hardly be considered a legitimate noncommercial
or fair use
pursuant to Policy ¶ 4(c)(iii). See Encyclopaedia Brittanica, Inc. v. Zuccarini,
D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the
domain names are misspellings of Complainant's mark).
The
Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration
and Use in Bad Faith
Respondent
has registered a domain name that is confusingly similar to Complainant’s
famous CHUCK E. CHEESE mark. There is
evidence that Respondent has successfully diverted Internet users who intended
to visit Complainant’s website to its own
commercial website. Respondent therefore, has registered <chuckcheese.com> in order to prevent Complainant from
reflecting its mark in the corresponding domain name. Further, although it is not in the Complaint, Respondent has
engaged in a pattern of similar conduct.
See America Online, Inc. v. Peppler dba
RealTimeInternet.com, FA
103437 (Nat. Arb. Forum Feb. 22, 2002) (finding that Respondent acted in bad
faith by registering and using twelve domain names
that infringed on one of
several of Complainant’s trademarks).
Therefore, Respondent has registered the disputed domain name in bad
faith as outlined in Policy ¶ 4(b)(ii).
See Armstrong Holdings,
Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that
the Respondent violated Policy ¶ 4(b)(ii) by registering multiple domain
names,
which infringe upon others’ famous and registered trademarks); see also Gamesville.com, Inc. v. Zuccarini, FA
95294 (Nat. Arb. Forum Aug. 30, 2000) (finding that Respondent has engaged in a
pattern of conduct of registering domain names
to prevent the owner of the
trademark from reflecting the mark in a corresponding domain name, which is
evidence of registration
and use in bad faith).
Respondent
has used the confusingly similar domain name to divert users to
advertisements. This is evidence that Respondent has used the disputed domain name
in an attempt to attract for commercial gain, Internet users to its website, by
creating
a likelihood of confusion with Complainant’s mark as to the source,
sponsorship, affiliation, or endorsement of Respondent’s website. Therefore, Respondent has used <chuckcheese.com> in bad faith as outlined in Policy ¶ 4(b)(iv). See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8,
2000) (finding bad faith where the Respondent attracted users to
advertisements).
Furthermore,
the practice of “typosquatting” has been recognized as a bad faith use of a
domain name under the UDRP. See AltaVista Co. v. Stoneybrook,
D2000-0886 (WIPO Oct. 26, 2000) (awarding <wwwalavista.com>, among other
misspellings of altavista.com, to Complainant); see also Dow Jones & Co. & Dow Jones, L.P. v. Powerclick, Inc.,
D2000-1259 (WIPO Dec. 1, 2000) (awarding domain names <wwwdowjones.com>,
<wwwwsj.com>, <wwwbarrons.com> and <wwwbarronsmag.com>
to
Complainants).
The
Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having
established all three elements required under the ICANN Policy, the Panel
concludes that the requested relief be hereby granted.
Accordingly,
it is Ordered that the domain name <chuckcheese.com>
be transferred from
Respondent to Complainant.
John
J. Upchurch, Panelist
Dated:
March 21, 2002
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