DECISION

Gerber Products Company v. Anti-Globalization Domains

Claim Number:  FA0311000210256

PARTIES

Complainant is Gerber Products Company, Fremont, MI (“Complainant”) represented by Baila H. Celedonia, of Cowan, Liebowitz & Latman, P.C., 1133 Avenue of the Americas, New York, NY 10036-6799.  Respondent is Anti-Globalization Domains, 5444 Arlington Ave. #G14, Bronx, NY 10471 (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwgerber.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com.

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.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on November 11, 2003; the Forum received a hard copy of the Complaint on November 12, 2003.

On November 11, 2003, Intercosmos Media Group, Inc. d/b/a Directnic.Com confirmed by e-mail to the Forum that the domain name <wwwgerber.com> is registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.Com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.Com 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 November 17, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 8, 2003 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@wwwgerber.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 December 17, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 makes the following assertions:

1. Respondent’s <wwwgerber.com> domain name is confusingly similar to Complainant’s GERBER mark.

2. Respondent does not have any rights or legitimate interests in the <wwwgerber.com> domain name.

3. Respondent registered and used the <wwwgerber.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant owns numerous registrations for its GERBER mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. Nos. 574727, 560057, 405310).  Complainant began using GERBER in commerce in 1928.  Complainant has used, promoted and advertised the GERBER mark extensively in the field of baby food and infant care products in the United States and throughout the world.  As a result, the GERBER mark has become famous and is an important asset to Complainant.  In addition, Complainant owns the domain name, <gerber.com>, as well as many variations thereof.

Respondent registered <wwwgerber.com> on April 6, 2003.  Respondent uses the disputed domain name to direct Internet users to another website, located at <abortionismurder.org>, which ostensibly conveys Respondent’s viewpoints relating to a political issue. 

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 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 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(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.

Identical and/or Confusingly Similar

Complainant has established rights in GERBER through registration with the USPTO and continuous use since 1928.

The disputed domain name, <wwwgerber.com>, is confusingly similar to Complainant’s GERBER mark because adding “www” before one’s registered mark, in order to capitalize on the probability that an Internet user may fail to insert a period between the two domain name sections, fails to alleviate the confusing similarity.  See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error that users commonly make when searching on the Internet”); see also Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus Respondent 's <wwwmarieclaire.com> domain name is confusingly similar to Complainant's MARIE CLAIRE trademark); see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from Complainant's NEIMAN-MARCUS mark).

Therefore, Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not asserted any rights or legitimate interests in the domain name.  Therefore, the Panel may accept all reasonable inferences of fact in the allegations of Complainant, without the benefit of a Response.  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw adverse inferences from Respondent’s failure to reply to the Complaint); see also 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).

Additionally, there is no evidence that Respondent is commonly known by the disputed domain name, pursuant to Policy ¶ 4(c)(ii).  The WHOIS registration information fails to imply that Respondent is commonly known by the name.  See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating, “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).

Furthermore, Respondent is engaged in typosquatting, which is evidence in itself, that Respondent lacks rights and legitimate interests in the disputed domain name.  See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s <wwwdinersclub.com> domain name, a typosquatted version of Complainant’s DINERS CLUB mark, was evidence in and of itself that Respondent lacks rights or legitimate interests in the disputed domain name vis á vis Complainant); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use); see also Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site”).

Therefore, Complainant has satisfied Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent has evidenced bad faith registration and use by engaging in typosquatting.  See Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also L.L. Bean, Inc. v. Cupcake Patrol, FA 96504 (Nat. Arb. Forum Mar. 12, 2001) (finding that Respondent acted in bad faith by establishing a pattern of registering misspellings of famous trademarks and names); see also Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (holding that an “absence of a dot between the ‘www’  and ‘canadiantire.com’ [in the <wwwcanadiantire.com> domain name is] likely to confuse Internet users, encourage them to access Respondent’s site” and evidenced bad faith registration and use of the domain name); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“[I]n typosquatting cases, such as this one, it would be difficult for Respondent to prove to the Panel that it did not have actual knowledge of Complainant’s distinctive MEDLINE mark when it registered the infringing <wwwmedline.com> domain name”).

Furthermore, Respondent registered Complainant’s famous mark in its entirety, which is evidence of Respondent’s knowledge of Complainant’s rights in the GERBER mark.  See RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003) (inferring that Respondent’s registration of the <wwwremax.com> domain name, incorporating Complainant’s entire mark, was done with actual notice of Complainant’s rights in the mark prior to registering the infringing domain name, evidencing bad faith); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”).

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

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

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  December 26, 2003

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