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Grundfos A/S v. Orion Web [2005] GENDND 652 (3 August 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Micro Electronics, Inc. v. J Lee

Case No. D2005-0170

1. The Parties

The Complainant is Micro Electronics, Inc., Hilliard, Ohio, United States of America, represented by Benesch, Friedlander, Coplan & Aronoff, LLP, Cleveland, Ohio, United States of America.

The Respondent is J Lee, Kowloon, Hong Kong, SAR of China.

2. The Domain Name and Registrar

The disputed domain name <micorcenter.com> is registered with iHoldings.com, Inc. d/b/a DotRegistrar.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2005. On February 14, 2005, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On February 14, 2005, iHoldings.com, Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on March 8, 2005. The Center verified that the Complaint, together with the Amended Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 11, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 15, 2005.

The Center appointed Nasser Ali Khasawneh as the sole panelist in this matter on May 6, 2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The Complainant is a retailer operating in the United States of America. The Complainant’s retail business covers various commodities including office furniture, office supplies, computer software and accessories products.

The Complainant has three trademark registrations in the United States that include the words MICRO CENTRE:

- Registration No. 1,843,328 (July 5, 1994) for MICRO CENTRE for retail services in the field of books and magazines, office furniture and others;

- Registration No. 1,552,264 (August 15, 1989) for MICRO CENTER for educational services.

- Registration No. 2,794,827 (December 16, 2003) for MICRO CENTER ONLINE for computerized online retail services in the field of computers, computer hardware, computer processors, and others.

The Complainant registered the domain name <microcenter.com> on July 24, 1996.

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

- The disputed domain name is confusingly similar to the trademarks MICRO CENTER and MICRO CENTER ONLINE in which the Complainant has rights. The Complainant argues, inter alia, that the confusing similarity is established by the fact that the disputed domain name differs only in the inversion of two letters from the Complainant’s trademark MICRO CENTER.

- The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant argues, inter alia, that the Respondent has not made any demonstrable preparations to use the domain name in connection with any bona fide offering of goods or services. The disputed domain name leads visitors to a web site containing sponsored links of certain companies.

- The domain name was registered and is being used in bad faith. The Complainant contends that the Respondent redirected web traffic from the disputed domain name to certain companies intending to benefit from the web traffic actually intended for the Complainant. Another evidence of bad faith, according to the Complainant, is the use of a “typosquatted” domain name. Also, the Complainant argues that there could have been no plausible legitimate reason for the Respondent’s choice of the disputed domain name other than for selling sponsored links to certain companies with the intention of benefiting from the web traffic intended for the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to trademarks in which the Complainant has rights. The disputed domain name <micorcenter.com> is basically a misspelling of the words “micro center.” The only difference is in the inversion of two letters, “o” and “r”. It is only this inversion of letters that differentiates the disputed domain name from the registered marks of the Complainant which contain the words “MICRO CENTER” and from the Complainant’s registered domain name, <microcenter.com>.

The Panel is convinced that this slight inversion of letters does not take the disputed domain name out of the realm of confusing similarity with the Complainant’s registered trademarks. The average consumer is highly likely to be confused by the similarity of these terms. In fact, it is highly likely that a customer intending to visit the web site of the Complainant would end up on the page of the disputed domain name because of an unintentional typing error.

There have been several UDRP decisions that have held mistyped domain names to be confusingly similar with registered trademarks. These include the following UDRP decisions: News Group Newspapers Limited and News Network Limited v. Momm Amed Ia, WIPO Case No. D2000-1623 (<pag3.com>), and Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (<reter.com>, <ruters.com>, and <reuers.com>).

Consequently, the Panel finds for the Complainant on the first element of the Policy.

B. Rights or Legitimate Interests

The Complaint alleges that the Respondent is using the disputed domain name in order to redirect visitors to a site promoting various sponsored links for certain companies. Indeed, when the Panel accessed the site of the disputed domain name, it was referred to such a page; the page that the Panel accessed provided links to a variety of sites, including a financial site and one that seemingly sells PC-related equipment.

The Panel considers that such use of the disputed domain name does not constitute legitimate or right-based use by the Respondent. In reaching this conclusion, the Panel is guided by various prior UDRP judgments. For example, in Drake Bliss v. Cyberline Enterprises, WIPO Case No. D2001-0718, the Panel found that the Respondent failed to meet the second test of the Policy because the disputed domain name was not used for an “apt” current activity, but simply to provide sponsored links to unrelated commercial sites.

Furthermore, the fact that the only difference between the disputed domain name and the registered trademarks of the Complainant is a minor and barely noticeable typographical error confirms the Panel’s view that the Respondent has no legitimate interests or rights in the disputed domain name. In Lexar Media, Inc. v. Michael Huang, WIPO Case No. D2004-1039, the Panel held that “a mere addition of a minor misspelling or typographical error of a mark does not create a new or different mark in which Respondent has legitimate interests.”

In brief, there is nothing in the facts and circumstances that points to the Respondent having a legitimate right or interest in the disputed domain name. One is guided in this regard by paragraph 4(c) of the Policy which lists three circumstances, each of which could prove the existence of rights or legitimate interests. None of these circumstances exist in this case. There is nothing to suggest that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services, that he is commonly known by the disputed domain name or that he is making legitimate noncommercial or fair use of the domain name. In fact, the record establishes, beyond reasonable doubt, that the opposite of each of these circumstances applies in this case.

Consequently, the Panel finds for the Complainant on the second element of the Policy.

C. Registered and Used in Bad Faith

There are various facts and circumstances that point to the use of the disputed domain name in bad faith. First of all, the Panel is convinced that “typosquatting” of this nature amounts in and of itself to bad faith use and registration. In this regard, the Panel is guided by various previous UDRP decisions, including The Sportsman’s Guide Inc. v. Vipercom, WIPO Case No. D2003–0145.

Secondly, the sole use of the disputed domain name to divert traffic to a site providing sponsored links of various commercial companies is indicative of bad faith. The Panel refers in this regard to paragraph 4(b) of the Policy which states that the following circumstance shall be evidence of registration and use in bad faith: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.” It is the Panel’s view that this circumstance fits the facts of the case at hand. By the use of a typographical error, the Respondent is attempting to attract Internet users unwittingly to his site for commercial gain – in the hope that Internet users would be confused into thinking that the site of the disputed domain name is linked to the legitimate business of the Complainant.

Consequently, the Panel finds that the third test of the Policy is met, and the disputed domain name was registered and used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <micorcenter.com> be transferred to the Complainant.

Nasser Ali Khasawneh
Sole Panelist

Dated: June 9, 2005