The Washington Post Company and Washingtonpost.Newsweek Interactive Company LLC v. Wasingtonpost.com aka Washingtonpos.com aka weatherpos.com
Claim Number: FA0112000102968
Complainant is The Washington Post Company and Washingtonpost Newsweek Interactive Company LLC, Washington, DC (“Complainant”) represented by Bruce A. McDonald, of Wiley, Rein & Fielding LLP. Respondent is Wasingtonpost.com aka Washingtonpos.com aka Weatherpos.com, Belize City, Belize (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wasingtonpost.com>, <washingtonpos.com>, <weatherpos.com> registered with Bulkregister.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on December 13, 2001; the Forum received a hard copy of the Complaint on December 13, 2001.
On December 28, 2001, Bulkregister confirmed by e-mail to the Forum that the domain names <wasingtonpost.com>, <washingtonpos.com>, <weatherpos.com> are registered with Bulkregister and that Respondent is the current registrant of the name. Bulkregister has verified that Respondent is bound by the Bulkregister 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 December 28, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 17, 2002 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@<wasingtonpost.com>, postmaster@<washingtonpos.com>, and postmaster@<weatherpos.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 January 30, 2002, 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.
Complainant requests that the domain names be transferred from the Respondent to the Complainant.
1. Since each domain name in dispute differs from Complainant’s service marks by just one letter, the domain names are confusingly similar to Complainant’s service marks.
2. Respondent has never used the domain names in dispute in connection with a bona fide offering or service and has not used the domain names in a legitimate noncommercial or fair use. Respondent’s interest is in trading upon Complainant’s strong marks in order to divert Internet traffic intended for Complainant’s websites to Respondent’s own search engine. Therefore, Respondent’s does not have a legitimate interest in any of the domain names.
3. By registering and using domain names confusingly similar to Complainant’s registered and common law service marks with the specific intention to profit from the public recognition enjoyed by Complainant’s service marks, Respondent is acting in bad faith as outlined in Policy ¶ 4(b).
No Response was received.
Since 1877, Complainant has made substantial, continuous and exclusive use of THE WASHINGTON POST as the name of its newspaper. Since 1996, Complainant has used <washingtonpost.com> as its website. Complainant registered THE WASHINGTON POST on November 26, 1991, Registration Number 1,665,832. Complainant registered WASHINGTONPOST.COM on May 2, 2000, Registration Number 2,346,367. Complainant registered the domain name <weatherpost.com> on November 27, 1996. The website has served as a specialized provider of world wide weather information under the service mark WEATHERPOST.
Respondent registered <washingtonpos.com> and <weatherpos.com> on December 28, 1997, and registered <wasingtonpost.com> on March 9, 1998. The administrative contact for <washingtonpos.com> is washingtonpos.com Administrative. The administrative contact for <weatherpos.com> is weatherpos.com Administrative. The administrative contact for <wasingtonpost.com> is wasingtonpost.com Administrative.
On information and belief, Respondent’s domain names are controlled by Nathan Joseph Kroshnood a/k/a Danny Kroshnood. In a previous arbitration action against Mr. Kroshnood, the domain name listed Mr. Kroshnood’s address as 62 Cleghorn Street, Belize City, Belize. Each domain name in this dispute lists the same address. Each domain name has the same phone number and fax number. Therefore, absent any evidence to the contrary, the Panel will treat all three domain names owned by the same Respondent, Mr. Kroshnood.
Respondent is a known cybersquater who has had several domain names transferred as the result of UDRP decisions including: <microsoftnetwork.com>, <hotmaill.com>, <homail.com>, <hotmai.com>, <otmail.com>, <hotmailcom.com>, and <aollnews.com>.
Internet users who type in any of the domain names involved in this dispute are routed to a website that display two links entitled “21 and Over Click Here” and “Bid 4 Placement on These Results.” Clicking on the “21 and Over Click Here” link at Respondent’s site leads users to pornographic material. Clicking on “Bid 4 Placement on These Results” leads users to a search engine site <letssearch.com> located at <top10sites.com>. The domain names <letssearch.com> and <top10sites.com> are registered to owners at 62 Cleghorn Street, Belize City, Belize.
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 and draw such inferences it considers appropriate pursuant to paragraph 14(b) 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; and
(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
Respondent has not submitted a response, and therefore the Panel may assume, for the purposes of this Decision, that the Complainant’s assertions are correct. 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.")
Complainant has established its right to THE WASHINGTON POST and WASHINGTONPOST.COM through continuous use and federal registration. Complainant has established a common law right in WEATHERPOST through its continuous use of the mark. The only difference between the Complainant’s service marks and the domain names in dispute is the exclusion of a letter. Therefore, the Panel finds that the domain names are confusingly similar to the Complainant’s service marks. See 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 did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the Complainant’s mark STATE FARM); see also Victoria's Secret v. Internet Inv. Firm Trust, FA 94344 (Nat. Arb. Forum May 9, 2000) (finding the domain name <victoriasecret.com> is confusingly similar to Complainant’s trademark, VICTORIA’S SECRET); see also American Airlines Inc. v. Data Art Corp., FA 94908 (Nat. Arb. Forum July 11, 2000) (finding <americanairline.com> "effectively identical and certainly confusingly similar" to Complainant's AMERICAN AIRLINES registered marks).
The Panel Finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Respondent offers no evidence that it has a legitimate interest in the domain names in dispute. Accordingly, the Panel will presume that Respondent has no rights or legitimate interests in the disputed domain names. 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).
Respondent’s use of the domain names in dispute, which are confusingly similar to Complainant’s established marks, diverts the viewer to a pornographic website and does not constitute a showing of a bona fide offering of goods and services outlined in Policy ¶ 4 (c)(i). See 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 tarnish the Complainant’s mark).
Respondent has not presented any evidence that it has been or is now commonly known as <washingtonpos.com>, <weatherpos.com> or <wasingtonpost.com> and therefore cannot satisfy Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark).
There is no evidence that Respondent has used the domain names in dispute for a legitimate noncommercial or fair use. The only evidence provided, describes Respondent’s use as to divert Internet users to its own website. The Respondent’s actions do not satisfy Policy ¶ 4 (c)(iii). See AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding that use of the domain name to direct users to other, unconnected websites does not constitute a legitimate interest in the domain name).
The Panel Finds that Policy ¶ 4(a)(ii) has been satisfied.
Considering Respondent’s current and past conduct of “typosquating,” there are inferences that Respondent has registered and used the confusingly similar infringing domain names to prevent the mark holder from reflecting the mark in corresponding domain names and has been engaged in such a pattern of conduct. Therefore, Respondent has registered and used the disputed domain names in bad faith as outlined in Policy ¶ 4 (b)(ii). See Armstrong Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the Respondent has registered numerous domain names that infringe upon the Complainant’s marks and in addition, the Respondent has registered domain names that infringe upon other entities’ marks).
The practice of “typosquating” is evidence that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s marks as to the source of the website and violates Policy ¶ 4 (b)(iv). See, e.g., AltaVista Co. v. Stoneybrook, D2000-0886 (WIPO Oct. 26, 2000) (awarding <wwwalavista.com>, among other misspellings of altavista.com, to Complainant); see also Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD 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).
The Panel Finds that Policy ¶ 4(a)(ii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief be hereby granted.
Accordingly, it is Ordered that the domain names: <wasingtonpost.com>, <washingtonpos.com>, and <weatherpos.com> be transferred from Respondent to Complainants.
Judge Harold Kalina (Ret.)
Dated: February 5, 2002
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