DECISION

McClatchy Management Services, Inc. v. Peter Carrington a/k/a Party Night Inc.

Claim Number:  FA0304000155902

PARTIES

Complainant is McClatchy Management Services, Inc., Sacramento, CA, USA (“Complainant”) represented by Ann Dunn Wessberg of Faegre & Benson LLP. Respondent is Peter Carrington a/k/a Party Night Inc., Amsterdam, Netherlands (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain names at issue are <startribun.com> and <stratribune.com> registered with Key-Systems GmbH.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 28, 2003; the Forum received a hard copy of the Complaint on April 29, 2003.

On April 30, 2003, Key-Systems GmbH confirmed by e-mail to the Forum that the domain names <startribun.com> and <stratribune.com> are registered with Key-Systems GmbH and that Respondent is the current registrant of the names. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 April 30, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 20, 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@startribun.com and postmaster@stratribune.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 May 28, 2003,  pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Judge Harold Kalina (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 names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <startribun.com> and <stratribune.com> domain names are confusingly similar to Complainant’s STAR TRIBUNE mark.

2. Respondent does not have any rights or legitimate interests in the <startribun.com> and <stratribune.com> domain names.

3. Respondent registered and used the <startribun.com> and <stratribune.com> domain names in bad faith.

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

FINDINGS

Complainant provides evidence of a federal registration with the United States Patent and Trademark Office (“USPTO”) for the STAR TRIBUNE mark (Reg. No. 1,495,070 registered on July 5, 1988) related to daily newspapers. Complainant furnishes newspaper-related services through its website, <startribune.com>.

Respondent registered the <startribun.com> and <stratribune.com> domain names on November 18, 2002. Respondent is using the disputed domain names to redirect Internet traffic to a website that features pornographic material, <amaturevideos.nl/hanky-panky-party.html>.

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 the STAR TRIBUNE mark through registration with the USPTO and continuous use in commerce since 1987.

Respondent’s <startribun.com> and <stratribune.com> domain names are confusingly similar to Complainant’s mark because the disputed domain names incorporate the entire mark with the exception of a typographical error. The <startribun.com> domain name omits the letter “e” from Complainant’s mark. The <stratribune.com> domain name transposes the letter “a” and the first letter “r” of the mark. Neither of the disputed domain names is sufficiently distinguishable from Complainant’s mark because the mark remains the principal element of each of the disputed domain names. See Compaq Info. Techs. Group, L.P. v. Seocho , FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to Complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has chosen not to favor the Panel with a Response in this proceeding. Therefore, the Panel may accept any reasonable allegation or inference in the Complaint as true. See Bayerische Motoren Werke AG v. Bavarian AG, FA110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a Response the Panel is free to make inferences from the very failure to respond and assign greater weight to certain circumstances than it might otherwise do); see also Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertion in this regard”).

Furthermore, the Panel presumes that Respondent lacks any rights to or legitimate interests in the disputed domain name because of Respondent’s failure to respond to the allegations in the Complaint. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”); 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).

Respondent is using the <startribun.com> and <stratribune.com> domain names to divert Internet users to a website that features pornographic material, <amaturevideos.nl/hanky-panky-party.html>. UDRP panels have consistently held that this use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Nat’l Football League Prop., Inc. v. One Sex Entm’t Co., D2000-0118 (WIPO Apr. 17, 2000) (finding that the Respondent had no rights or legitimate interests in the domain names <chargergirls.com> and <chargergirls.net> where the Respondent linked these domain names to its pornographic website); see also 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 Complainant’s mark).

Moreover, Respondent has presented no proof and no evidence in the record suggests that Respondent is commonly known by STARTRIBUN, STRATRIBUNE or either of the disputed domain names. Thus, Respondent has failed to establish its rights to or legitimate interests in the <startribun.com> and <stratribune.com> domain names pursuant to Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also MRA Holding, LLC v. Costnet, FA 140454 (Nat. Arb. Forum Feb. 20, 2003) (noting that “the disputed domain name does not even correctly spell a cognizable phrase” in finding that Respondent was not “commonly known by” the name GIRLS GON WILD or <girlsgonwild.com>).

Accordingly, the Panel finds that Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Policy ¶ 4(b) supplies examples of circumstances that demonstrate bad faith registration and use. However, the list of circumstances is not exclusive. The Panel is permitted to look at the totality of circumstances in determining the issue of bad faith. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“the examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive”).

Complainant provides evidence that Respondent is a well-known “typosquatter.” Typosquatting diverts Internet users who misspell Complainant’s mark to a website sponsored by Respondent for Respondent’s commercial gain. Typosquatting has been recognized as evidence of bad faith registration and use with regard to Policy ¶ 4(a)(iii). 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).

Moreover, Respondent is using the <startribun.com> and <stratribune.com> domain names to redirect Internet users to a pornographic website. The use of a domain name confusingly similar to a registered mark to divert Internet traffic to a website that features sexually explicit material constitutes bad faith registration and use under Policy ¶ 4(a)(iii). 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); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (use of another's well-known mark to provide a link to a pornographic site is evidence of bad faith registration and use).

The Panel finds that Policy ¶ 4(a)(iii) has been established.

DECISION

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

Accordingly, it is Ordered that the <startribun.com> and <stratribune.com> domain names be TRANSFERRED from Respondent to Complainant.

Judge Harold Kalina (Ret.), Panelist

Dated:  June 2, 2003

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