DECISION

 

Little Six Inc dba Mystic Lake Casino Hotel v. Iggi Networks Inc.

Claim Number: FA0111000101812

 

PARTIES

Complainant is Little Six, Inc. d/b/a Mystic Lake Casino Hotel, Prior Lake, MN (“Complainant”) represented by Stephen R. Baird, of Fish & Richardson, P.C., P.A..  Respondent is Iggi Networks, Inc., Boca Raton, FL (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <clubingo.com>, registered with Network Solutions, 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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 7, 2001; the Forum received a hard copy of the Complaint on November 8, 2001.

 

On November 9, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <clubingo.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 9, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 29, 2001 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@clubingo.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 7, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 the Respondent to the Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

Respondent's <clubingo.com> domain name is confusingly similar to Complainant's CLUB BINGO mark.

 

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

 

Respondent registered the disputed domain name in bad faith.

 

B. Respondent

Respondent failed to submit a Response.

 

FINDINGS

Since 1997, Complainant, Mystic Lake Casino, has been the owner of the mark CLUB BINGO.  Complainant has five registrations of the mark with the U.S. Patent and Trademark Office. The mark is used in  relation to casino services and goods such as calculators, sewing kits, totebags, leather carrying cases for calculators and note pads.

 

Respondent registered the disputed domain name on October 2, 2000.  The domain name does not resolve to an active website.

 

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.

 

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;

(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, through registration and use has demonstrated that it has rights in the CLUB BINGO mark.  Furthermore, Respondent's <clubingo.com> domain name is confusingly similar to Complainant's mark because the disputed domain name is a misspelling of Complainant's mark and phonetically similar.  It has been found that common misspellings of a mark do not create a distinct mark.  See Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to Complainant’s HEWLETT-PACKARD mark); see also Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the Complainant’s UNIVERSAL STUDIOS STORE mark does not change the overall impression of the mark and thus is confusingly similar to the Complainant’s mark).

 

Furthermore, <clubingo.com> sounds exactly the same as CLUB BINGO.  Domain names that are phonetically similar to registered marks are considered to be confusingly similar.  See YAHOO! Inc. v. Murray, D2000-1013 (WIPO Nov. 17, 2000) (finding that the domain name <yawho.com> is confusingly similar to the Complainant’s YAHOO mark); see also VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that the pronunciation and spelling between the domain name <venesign.com> and the Complainant’s mark, VeriSign, are so close that confusion can arise in the mind of the consumer).

 

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”).

 

There is no evidence on the record, and Respondent has not come forward to establish that it is commonly known by the <clubingo.com> domain name pursuant to Policy ¶ 4(c)(ii).  See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).

 

There is no evidence, and Respondent does not refute, that Respondent has rights or legitimate interests in respect to the disputed domain name.  See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding “that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainant’s <THE BODY SHOP> trademark and service mark”).

 

Furthermore, Respondent has failed to establish a website at the disputed domain name even though it has owned <clubingo.com> for over a year.  Respondent's passive holding of the domain name demonstrates a lack of rights and legitimate interests.  See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in said domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way).

 

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

 

Registration and Use in Bad Faith

Respondent has registered other domain names infringing upon the marks of other famous trademarks.  It has been found that a pattern of such conduct is evidence of bad faith.  See Armstrong Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the Respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names which infringe upon others’ famous and registered trademarks); see also Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (Sept. 6, 2000) (finding bad faith where the Respondent engaged in the practice of registering domain names containing the trademarks of others).

 

Respondent's registration and use of the <clubingo.com> domain name is typosquatting. This practice of “typosquatting” has been recognized as a bad faith use of a domain name under the UDRP.  See, e.g., Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000)(awarding <hewlitpackard.com> to Complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000)(awarding , <davemathewsband.com> and <davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to Complainant).

 

Respondent's registration and passive holding of the <clubingo.com> domain name supports a finding of bad faith pursuant to Policy ¶ 4(a)(iii).   See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose).

 

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 <clubingo.com>, be transferred from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

 

Dated: December 11, 2001