DECISION

 

CEC Entertainment, Inc. v. Anthony Peppler aka RealTimeInternet.com, Inc.

Claim Number: FA0202000104208

 

PARTIES

Complainant is CEC Entertainment, Inc., Irving, TX (“Complainant”) represented by Nicole B. Emmons, of Baker & McKenzie.  Respondent is Anthony Peppler RealTimeInternet.com, Inc., Fort Wayne, IN (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <chuckcheese.com>, registered with Stargate Communications, 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 February 5, 2002; the Forum received a hard copy of the Complaint on February 8, 2002.

 

On February 5, 2002, Stargate Communications, Inc. confirmed by e-mail to the Forum that the domain name <chuckcheese.com> is registered with Stargate Communications, Inc. and that Respondent is the current registrant of the name.  Stargate Communications, Inc. has verified that Respondent is bound by the Stargate Communications, 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 February 13, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of March 5, 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@chuckcheese.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 March 12, 2002, 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 Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

 

1. The <chuckcheese.com> domain name is nearly identical and is certainly confusingly similar to Complainant’s CHUCK E. CHEESE mark.

 

2. Respondent did not receive a license to use Complainant’s mark and is not commonly known as <chuckcheese.com>.  Further, Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services and is not a legitimate noncommercial or fair use.  Therefore, Respondent has no rights or legitimate interests in <chuckcheese.com>.

 

3. Respondent’s registration and use of the disputed domain name is an attempt to attract for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.  Further, Respondent’s registration of the disputed domain name prevents Complainant from reflecting the marks in corresponding domain names important to its business, and therefore, intentionally disrupts Complainant’s business.  Therefore, Respondent registered and used the disputed domain name in bad faith.  

 

B. Respondent

No Response was received.

 

FINDINGS

Complainant is the owner and operator of a chain of restaurant/entertainment facilities, both nationwide and in several countries outside of the United States, known as CHUCK E. CHEESE’S.  Complainant has registered several marks with the United States Patent and Trademark Office including; CHUCK E. CHEESE’S, registered on April 22, 1977, Registration Number 2,055,026; and CHUCK E. CHEESE was registered August 3, 1982, Registration Number 1,203,974.  As the result of marketing and promoting its marks, Complainant has become one of the nation’s largest restaurant and entertainment providers to children ages 2-12 years-old.

 

Respondent registered the disputed domain name <chuckcheese.com> on April 18, 2001.  Respondent’s domain name came to the attention of Complainant by concerned parents regarding their children’s accidental access to Respondent’s website.  The children intended to visit Complainant’s site at <chuckecheese.com> or <chuckecheeses.com>.  The concern about Respondent’s website is that it acts as a mousetrap: once the user accesses the site, the user is subjected to numerous advertisements for varied commercial enterprises, including Internet gaming and gambling websites.

 

Complainant has made several requests that Respondent cease and desist and still has not received an answer.

 

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 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

 

Complainant has established its rights to CHUCK E. CHEESE through federal registration and subsequent use.  The <chuckcheese.com>  domain name is confusing similar to CHUCK E. CHEESE.  The only difference between the disputed domain name and Complainant’s mark is the exclusion of “e.”.  Such a change does not diminish the confusing similarity between the famous mark and the disputed domain name.  See Victoria’s Secret et al. v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that misspelling words and adding letters on to words does not create a distinct mark but is nevertheless confusingly similar with Complainant’s marks). 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 Target Brands, Inc. v. Zuccarini, FA 99683 (Nat. Arb. Forum Oct. 18, 2001) (finding the domain name <marshalfield.com> confusingly similar with Complainant’s mark MARSHALL FIELD’S).

 

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

 

Rights or Legitimate Interests

 

Respondent has failed to file a Response in this matter.  Therefore, the Panel may presume that Respondent has no rights or legitimate interests in <chuckcheese.com>.  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).

 

There is evidence that Internet users intended to visit Complainant’s website, and by misspelling Complainant’s trademark, were diverted to Respondent’s website in which Respondent benefited commercially by inundating the user with various Internet advertisements.  Such use of <chuckcheese.com> is not a bona fide offering of goods or services pursuant to policy ¶ 4(c)(i).  See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights or legitimate interests where Respondent diverted Complainant’s customers to his websites); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).

 

Respondent is known as Anthony Peppler or RealTimeInternet.com, Inc., and has not presented any evidence that he has been or is currently known as <chuckcheese.com>.  Therefore, Respondent has failed to satisfy 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).

 

A misspelling of a famous mark, like CHUCK E. CHEESE, in connection with a commercial use can hardly be considered a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Encyclopaedia Brittanica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of Complainant's mark).

 

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

 

Registration and Use in Bad Faith

 

Respondent has registered a domain name that is confusingly similar to Complainant’s famous CHUCK E. CHEESE mark.  There is evidence that Respondent has successfully diverted Internet users who intended to visit Complainant’s website to its own commercial website.  Respondent therefore, has registered <chuckcheese.com> in order to prevent Complainant from reflecting its mark in the corresponding domain name.  Further, although it is not in the Complaint, Respondent has engaged in a pattern of similar conduct.  See America Online, Inc. v. Peppler dba RealTimeInternet.com, FA 103437 (Nat. Arb. Forum Feb. 22, 2002) (finding that Respondent acted in bad faith by registering and using twelve domain names that infringed on one of several of Complainant’s trademarks).  Therefore, Respondent has registered the disputed domain name 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 violated Policy ¶ 4(b)(ii) by registering multiple domain names, which infringe upon others’ famous and registered trademarks); see also Gamesville.com, Inc. v. Zuccarini, FA 95294 (Nat. Arb. Forum Aug. 30, 2000) (finding that Respondent has engaged in a pattern of conduct of registering domain names to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, which is evidence of registration and use in bad faith).

 

Respondent has used the confusingly similar domain name to divert users to advertisements.  This is evidence that Respondent has used the disputed domain name in an attempt to attract for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.  Therefore, Respondent has used <chuckcheese.com> in bad faith as outlined in Policy ¶ 4(b)(iv).  See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted users to advertisements).

 

Furthermore, the practice of “typosquatting” has been recognized as a bad faith use of a domain name under the UDRP.  See AltaVista Co. v. Stoneybrook, D2000-0886 (WIPO Oct. 26, 2000) (awarding <wwwalavista.com>, among other misspellings of altavista.com, to Complainant); see also Dow Jones & Co. & Dow Jones, L.P. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (awarding domain names <wwwdowjones.com>, <wwwwsj.com>, <wwwbarrons.com> and <wwwbarronsmag.com> to Complainants).

 

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 be hereby granted.

 

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

 

John J. Upchurch, Panelist

Dated: March 21, 2002