Manpower, Inc. v. P.G. Koenraadt
Claim Number: FA0205000114286
Complainant is Manpower, Inc., Milwaukee, WI, USA (“Complainant”) represented by Paul D. McGrady, of Ladas & Parry. Respondent is P.G. Koenraadt, Istanbul, TURKEY (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <manpowr.com>, registered with Namescout.com.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 16, 2002; the Forum received a hard copy of the Complaint on May 17, 2002.
On May 23, 2002, Namescout.com confirmed by e-mail to the Forum that the domain name <manpowr.com> is registered with Namescout.com and that Respondent is the current registrant of the name. Namescout.com has verified that Respondent is bound by the Namescout.com 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 May 23, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 12, 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 firstname.lastname@example.org 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 June 26, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., 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 name be transferred from Respondent to Complainant.
1. Respondent’s <manpowr.com> domain name is confusingly similar to Complainant’s registered MANPOWER family of marks.
2. Respondent has no rights or legitimate interests in the <manpowr.com> domain name.
3. Respondent registered and used the <manpowr.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds registrations for its MANPOWER family of marks worldwide. More specifically, Complainant owns: Reg. No. 1458819 for its MANPOWER mark in Argentina, registered July 30, 1993; Reg. No. 152312 for its MANPOWER mark in Benelux; Reg. No. 127440 for its MANPOWER mark in Canada; Reg. No. 1288749 for its MANPOWER LOGO in United Kingdom; and Reg. No. 111376 for its MANPOWER mark in Turkey, Respondent’s domicile, registered June 1, 1999.
Complainant’s various marks have represented Complainant’s internationally offered service of marketing temporary employment since 1948. In 2001, Complainant’s annual sales were approximately $11.8 billion worldwide. Complainant was ranked No. 182 on the Fortune 500 list for 2001. Complainant has over 400,000 customers worldwide, which include 90 of the Fortune 100 U.S. companies and 94% of the Fortune 500 companies. Complainant has approximately 3,900 offices worldwide located in sixty-one different countries. Complainant also operates from the <manpower.com> domain name.
Respondent registered the disputed domain name December 27, 2001. Respondent’s disputed domain name prompts Internet users to “Click Here” after displaying the text “This Site Moved to Another Place…” The attached website that Internet users ultimately reach is located at the <gay-asian-men.com> domain. Complainant’s investigation of Respondent has failed to uncover any trademark registrations or applications for the alleged MANPOWR mark. Respondent is not a licensee or authorized agent of Complainant.
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.
Complainant has established its rights in the MANPOWER family of marks via international registration and continuous use of the marks since 1948.
Respondent’s <manpowr.com> domain name is confusingly similar to Complainant’s mark. Respondent’s deletion of the letter “e” fails to detract from the overall impression of the domain, namely, Complainant’s MANPOWER mark. Respondent’s attempt to capitalize on a common typographical error is a classic example of typosquatting, whereby a famous mark falls victim to domain name registrations that deviate insignificantly. See Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such generic typos do not change the Respondent’s infringement on a core trademark held by Complainant); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Because Respondent has not submitted a Response in this matter, the Panel may presume it has no rights or legitimate interests in respect of 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, Respondent’s failure to respond allows all reasonable inferences made by Complainant to be deemed true. See Vertical Solutions Mgmt., Inc. v. Webnet-Marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).
As previously stated, Respondent registered the disputed domain name and reroutes unsuspecting Internet users to a <gay-asian-men.com> domain name that advertises “Explicit Gay Videos.” Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). There is no apparent connection between Respondent’s <manpowr.com> domain name and the pornographic content attached to Respondent’s domain. 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 to tarnish the Complainant’s mark); see also 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 Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that infringing on another's well-known mark to provide a link to a pornographic site is not a legitimate or fair use).
Respondent is not commonly known by “manpowr” or <manpowr.com> pursuant to Policy ¶ 4(c)(ii). Respondent is only known to this Panel as P.G. Koenraadt. Respondent is not authorized or licensed to use Complainant’s mark. Thus, Respondent has failed to demonstrate its rights to and legitimate interests in the disputed domain name. See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant’s MANPOWER family of marks has represented Complainant’s international services since 1948. Because of Complainant’s longstanding use of its established mark, Complainant’s registration of its MANPOWER mark worldwide, including Respondent’s domicile, Turkey, and Respondent’s registration of a confusingly similar domain name with no apparent legitimate interest, Respondent is thought to have had constructive notice of Complainant’s mark. Respondent’s registration and use of a confusingly similar domain name despite knowledge of Complainant’s preexisting rights in a mark constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Net2phone Inc. v. Netcall SAGL, D2000-0666 (WIPO Sept. 26, 2000) (finding constructive notice as a result of Complainant’s widespread promotional efforts coupled with diversion from Complainant’s site to Respondent’s for competing commercial gain is sufficient evidence of bad faith registration and use); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).
Respondent registered the disputed domain name, which is Complainant’s mark with a common typographical error, in order to attract, for commercial gain, Internet users searching for Complainant’s services. Respondent’s registration and use of a domain name for commercial benefit represents bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent registered and used an infringing domain name to attract users to a website sponsored by Respondent); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the Respondent directed Internet users seeking the Complainant’s site to its own website for commercial gain).
More specifically, Respondent’s tarnishing of Complainant’s established mark by linking the confusingly similar domain name to a pornographic website represents general bad faith registration and use under Policy ¶ 4(a)(iii). See MatchNet plc. v. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that the association of a confusingly similar domain name with a pornographic website can constitute 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); see also Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000) (finding bad faith where Respondent attracted users to his website for commercial gain and linked his website to pornographic websites).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief should be hereby GRANTED.
Accordingly, it is Ordered that the <manpowr.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 10, 2002
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