DECISION

InfoSpace, Inc. v. Grand Slam Co. c/o Jerry Stein

Claim Number:  FA0401000223027

PARTIES

Complainant is InfoSpace, Inc. (“Complainant”), represented by Pallavi Mehta Wahi, of Stokes Lawrence, P.S., 800 Fifth Ave., Suite 4000, Seattle, WA 98104-3179.  Respondent is Grand Slam Co. c/o Jerry Stein (“Respondent”), 8020 W.Sahara, #230, Las Vegas, NV 89117.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwdogpile.com>, registered with Gkg.Net, 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.

Louis E. Condon as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 2, 2004; the Forum received a hard copy of the Complaint on January 5, 2004.

On January 2, 2004, Gkg.Net, Inc. confirmed by e-mail to the Forum that the domain name <wwdogpile.com> is registered with Gkg.Net, Inc. and that Respondent is the current registrant of the name. Gkg.Net, Inc. has verified that Respondent is bound by the Gkg.Net, 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 January 8, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 28, 2004 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@wwdogpile.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 February 9, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Louis E. Condon 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 <wwdogpile.com> domain name is confusingly similar to Complainant’s DOGPILE mark.

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

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

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

FINDINGS

Complainant, InfoSpace, Inc., is a global provider of wireless and Internet software and application services to wireless broadband providers, websites, and merchant resellers. Complainant provides, inter alia, Internet directory and search engine services. Through its wholly owned subsidiary, Go2Net, Inc., has been using the DOGPILE mark since as early as November of 1996 in connection with many of these services, and has obtained several registrations of the mark (e.g. U.S. Reg. Nos. 2,401,276 and2,456,655, both claiming a date of first use in November of 1996). Complainant also operates a website at both the <dogpile.com> and <dogpile.net> domain names.

Respondent, Grand Slam Co. c/o Jerry Stein, registered the <wwdogpile.com> domain name on July 9, 2000, without license or authorization to use the DOGPILE mark for any purpose. The disputed domain name links to a gambling website at the <mysportsbook.com> domain name, which in turn links Internet users to other gambling websites.

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 DOGPILE mark through widespread use of the mark in commerce since 1996, as well as through registrations of the mark on the Principal Register of the U.S. Patent and Trademark Office. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning”); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established).

Respondent’s <wwdogpile.com> domain name is confusingly similar to Complainant’s DOGPILE mark. But for the addition of the letter sequence “ww”, instead of the traditional “www,” the disputed domain name is identical to Complainant’s mark. 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 (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Marie Claire Album v. Geoffrey 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).

Accordingly, the Panel finds that the <wwdogpile.com> domain name is confusingly similar to Complainant’s DOGPILE mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent is using the <wwdogpile.com> domain name to redirect Internet users to the <mysportsbook.com> domain name, presumably in order to receive referral fees or commissions from the operator of that gambling website. Using Complainant’s mark in a typosquatted domain name for such commercial purposes is not a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i), nor can it be a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). Given the typosquatted nature of the domain name, the Panel also finds that Policy ¶ 4(c)(ii) does not apply, as there is no evidence that Respondent is actually “commonly known by” the name “wwdogpile.com.” 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 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.”); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“Considering the nonsensical nature of the [<wwwmedline.com>] domain name and its similarity to Complainant’s registered and distinctive [MEDLINE] mark, the Panel concludes that Policy ¶ 4(c)(ii) does not apply to Respondent”).

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <wwdogpile.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Traditionally, typosquatting has been viewed as evidence that a domain name was registered and used in bad faith, and this case is no exception. By adding the phrase “ww” (instead of the traditional “www”) to the front of Complainant’s DOGPILE mark in the disputed domain name, Respondent is seeking to capitalize on the typing mistakes of Internet users seeking Complainant’s website. Such parasitic use of Complainant’s mark, in order to gain revenue from the <mysportsbook.com> domain name, is evidence that the domain name was registered and used in bad faith. See Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (holding that the absence of a dot between the “www”and “canadiantire.com” in the <wwwcanadiantire.com> domain name was likely to confuse Internet users and evidences bad faith registration and use of the domain name); see also 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 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.”).

The Panel thus finds that Respondent registered and used the <wwdogpile.com> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.

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

Louis E. Condon, Panelist

Dated:  February 23, 2004

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