National Arbitration Forum

 

DECISION

 

Meade Instruments Corp. v. Drop One - Buy/Sell/Lease and Snapping Services c/o Nick M.

Claim Number: FA0502000423017

 

PARTIES

Complainant is Meade Instruments Corp. (“Complainant”), represented by Peter R. Afrasiabi, of Turner Green Afrasiabi & Arledge LLP, 535 Anton Blvd., Suite 850, Costa Mesa, CA 92626.  Respondent is Drop One - Buy/Sell/Lease and Snapping Services c/o Nick M. (“Respondent”), P.O. Box 457, Dubai, 100001 AE.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <wwwmeade.com>, registered with Atcom Technology LLC.

 

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.

 

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 17, 2005; the National Arbitration Forum received a hard copy of the Complaint on February 22, 2005.

 

On February 22, 2005, Atcom Technology LLC confirmed by e-mail to the National Arbitration Forum that the domain name <wwwmeade.com> is registered with Atcom Technology LLC and that the Respondent is the current registrant of the name.  Atcom Technology LLC has verified that Respondent is bound by the Atcom Technology LLC 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 28, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of March 21, 2005 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@wwwmeade.com by e-mail.

 

Respondent submitted its Response in electronic form on March 21, 2005.  UDRP Rule 5(b) states, “The response shall be submitted in hard copy and (except to the extent not available for annexes) in electronic form . . . .”  In addition, Rules 5(b)(i)-(ix) mandate further information to be included in responses including, among other things, a signed certification that the information included in a response is complete and accurate. 

 

Respondent has failed to provide a hard copy of its Response, to certify the Response, and to address other mandates provided for under Rule 5(b).  In its discretion, the Panel accepts the Response, despite its noncompliance with the UDRP Rules.

 

On March 25, 2005, Complainant timely submitted an Additional Submission.

 

On March 30, 2005, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

            A.  Complainant makes the following assertions:

1.      Respondent’s <wwwmeade.com> domain name is identical to Complainant’s MEADE mark.

 

2.      Respondent does not have any rights or legitimate interests in the  <wwwmeade.com>domain name.

 

3.      Respondent registered and used the <wwwmeade.com> domain name in bad faith.

B. Respondent

Respondent says that he has never asked for any money from Complainant for the domain name.  Nor has he diverted the domain to any site or page which is detrimental to Complainant’s interests for personal gains.

           

C. Complainant’s Additional Submission

            Complainant challenges the relevancy of Respondent’s Response.

 

 

FINDINGS

Complainant, Meade Instruments Corp., has two registrations of the MEADE mark with the United States Patent and Trademark Office, registration numbers 1,156,176 (issued June 2, 1981 in connection with “Telescopes, Telescope Parts”) and 2,082,786 (issued July 29, 1997 in connection with “scientific and optical apparatus and instruments, namely, telescopes; eye pieces, view finders, lenses, prisms, filters, polarizers, mirrors, tripods, mounts and balance weights all for telescopes,” among other things). 

 

Respondent registered the <wwwmeade.com> domain name on May 17, 2004.    Respondent’s website resolved to a website that offered links to companies that sell telescopes.  Subsequent to the filing of this proceeding, Respondent changed his website to resolve to an Internet mall directory.

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”

 

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 bases its rights in the MEADE mark on its two registrations of the mark with the United States Patent and Trademark Office.  Complainant’s registration of the MEADE mark with a government trademark authority establishes a presumption of valid and subsisting trademark rights in the mark pursuant to Policy Paragraph 4(a)(i).   See Am. Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful trademark registration with the United States Patent and Trademark Office creates a presumption of rights in a mark); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption).

 

The disputed domain name, <wwwmeade.com>, is confusingly similar to Complainant’s MEADE mark because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet.”  Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000); see also Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus Respondent 's <wwwmarieclaire.com> domain name is confusingly similar to Complainant's MARIE CLAIRE trademark); see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from Complainant's NEIMAN-MARCUS mark); see also Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat. Arb. Forum Nov. 19, 2002) (finding Respondent's <wwwdana.com> domain name confusingly similar to Complainant's registered DANA mark because Complainant's mark remains the dominant feature).

 

Rights or Legitimate Interests

 

Respondent has used the <wwwmeade.com> domain name to re-direct Internet users who are searching for Complainant’s website to another website that offers links to telescopes, which are the same products that Complainant sells under its MEADE mark.  Respondent’s use of the domain name is neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use pursuant to Policy Paragraphs 4(c)(i) and (iii).  See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that respondent was not using domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because respondent used the names to divert Internet users to a website that offered competing services with those offered by the complainant under its marks); see also Glaxo Group Ltd. v. Glenmore, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that respondent was not using the domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the trademark pursuant to Policy ¶ 4(c)(iii) because respondent used the domain name to take advantage of Complainant's mark by diverting Internet users to a competing commercial site); see also C & E Fein GmbH & Co. v. Mierendorff, FA 183729 (Nat. Arb. Forum Oct. 1, 2003) (“Relevant law states that no legitimate or bona fide use or interest in the domain name can be found when a respondent, who is selling competing goods and services, is diverting consumers to its own web site by using a complainant's trademark in its domain name.”).

 

Also, Respondent is not commonly known by “wwwmeade” or “wwwmeade.com” pursuant to Policy Paragraph 4(c)(ii).  The WHOIS information does not show that Respondent is commonly known by the disputed domain name.  See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (finding that the WHOIS information, and its failure to imply that Respondent is commonly known by the disputed domain name, is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that, without demonstrable evidence to support the notion that a respondent is commonly known by a domain name, the notion must be rejected). 

Registration and Use in Bad Faith

 

Respondent is engaged in the practice of typosquatting in violation of Policy Paragraph 4(a)(iii).  See Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (holding that an “absence of a dot between ‘www’  and ‘canadiantire.com’ [in the <wwwcanadiantire.com> domain name is] likely to confuse Internet users [and] encourage them to access Respondent’s site” and evidenced bad faith registration and use of the domain name); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“[I]n typosquatting cases, such as this one, it would be difficult for Respondent to prove to the Panel that it did not have actual knowledge of Complainant’s distinctive MEDLINE mark when it registered the infringing <wwwmedline.com> domain name.”).

 

Respondent has used the disputed domain name to resolve to a website that offers goods that compete with those offered by Complainant under its MEADE mark; therefore, Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which is evidence of bad faith pursuant to Policy Paragraph 4(b)(iii).  See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from Complainant's marks suggests that Respondent, Complainant’s competitor, registered the names primarily for the purpose of disrupting Complainant's business); see also Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has diverted business from Complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).

 

Also, Respondent registered and used the disputed domain name in bad faith pursuant to Policy Paragraph 4(b)(iv).  Respondent has intentionally attempted to attract Internet users to its commercial website by creating a likelihood of confusion with Complainant’s mark. 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 Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

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

 

 

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 12, 2005

 

 

 

 

 

 

Click Here to return to the main Domain Decisions Page.

 

Click Here to return to our Home Page

 

National Arbitration Forum