DECISION

Vectone Group Holding, PLC v. Bernard Khoury

Claim Number: FA0203000105758

PARTIES

Complainant is Vectone Group Holding PLC, London, UK (“Complainant”) represented by Akin Oyolola.  Respondent is Bernard Khoury, Irvine, CA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <vecfone.com>, registered with eNom, Inc.

PANEL

On April 15, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist. 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.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on March 6, 2002; the Forum received a hard copy of the Complaint on March 11, 2002.

On March 7, 2002, eNom, Inc. confirmed by e-mail to the Forum that the domain name <vecfone.com> is registered with eNom, Inc. and that Respondent is the current registrant of the name.  eNom, Inc. has verified that Respondent is bound by the eNom, 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 March 18, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 8, 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@vecfone.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.

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 the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The <vecfone.com> domain name is confusingly similar to Complainant's VECTONE mark.

Respondent has no rights or legitimate interests in the disputed domain name.

Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant uses the VECTONE mark in relation to its international telecommunications company headquartered in London.  Complainant has registered the mark with the European Union as Trademark application number 2036861 on January 31, 2002.

Respondent became the registrant of the disputed domain name on December 7, 2001 after Bernard Ferrie transferred it to him.  Bernard Ferrie has registered other domain names that infringe upon Complainant’s marks, including <mypc2call.com>.  The <mypc2call.com> domain name made references to a VECFONE, and before Complainant initiated a UDRP proceeding against Mr. Ferrie to gain possession of <vecfone.com>, Ferrie had transferred the domain name to Respondent.  The disputed domain name features telecommunication services similar to Complainant’s services.

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 that it has rights in the VECTONE mark through use and registration of the mark in the European Union.  Furthermore, Respondent’s <vecfone.com> domain name is confusingly similar to Complainant’s VECTONE mark because it is merely a misspelling of Complainant’s mark.  Respondent has replaced the ‘t’ in Complainant’s VECTONE mark with an ‘f’ in its domain name.  Misspellings of marks are not considered to create a distinct mark capable of overcoming a claim of confusing similarity.  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders it confusingly similar to Complainant’s marks); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the Complainant’s STATE FARM mark).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has no rights or legitimate interests in the disputed domain name.  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).

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”).

Respondent is using a confusingly similar domain name to offer services that are similar to Complainant’s services.  The use of a domain name confusingly similar to Complainant’s mark to attract Complainant’s customers to Respondent’s website is not considered to be 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 Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing website).

Furthermore, the record does not reveal any evidence that Respondent is commonly known by the disputed domain name, nor has Respondent come forward to provide any evidence that it is known by <vecfone.com> pursuant to Policy ¶ 4(c)(ii).  Therefore, Respondent has no rights or legitimate interests in the disputed domain name.  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Great S. Wood Pres., Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000) (finding that Respondent was not commonly known by the domain name <greatsouthernwood.com> where Respondent linked the domain name to <bestoftheweb.com>).

Respondent is using <vecfone.com> in order to offer telecommunication services that are similar to Complainant’s services.  The similarity of the disputed domain name and Complainant’s mark is likely to cause confusion among Internet users as to the source, sponsorship, and affiliation of Respondent’s website for Respondent’s commercial gain.  Therefore, Respondent is not making a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii).  See Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark); see also Caterpillar Inc. v. Quin, D2000-0314 (WIPO June 12, 2000) (finding that Respondent does not have a legitimate interest in using the domain names <caterpillarparts.com> and <caterpillarspares.com> to suggest a connection or relationship, which does not exist, with Complainant's mark CATERPILLAR).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

It can be inferred that Respondent is using the <vecfone.com> domain name in order to attract Complainant’s customers to Respondent’s competing website for Respondent’s commercial gain.  This type of use is considered to be in bad faith pursuant to Policy ¶ 4(b)(iv).  See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where Respondent registered the domain name <bigtex.net> to infringe on Complainant’s goodwill and attract Internet users to Respondent’s website); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the Respondent directed Internet users seeking the Complainant’s site to its own website for commercial gain).  

It can be inferred, based on the similarity of the <vecfone.com> domain name to Complainant’s VECTONE mark, and the similarity of products offered on Respondent’s website to Complainant’s, that Respondent registered the disputed domain name in order to disrupt Complainant’s business.  This type of use is considered to in bad faith pursuant to Policy ¶ 4(b)(iii).  See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the Complainant's marks suggests that the Respondent, the Complainant’s competitor, registered the names primarily for the purpose of disrupting the Complainant's business); see also EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where Respondent’s sites pass users through to Respondent’s competing business).

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 shall be hereby granted.

Accordingly, it is Ordered that the domain name <vecfone.com> be transferred from Respondent to Complainant.

James P. Buchele, Panelist

Dated:  April 17, 2002

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