Save the Children Federation, Inc. v.
Unasi Inc.
Claim
Number: FA0507000510017
Complainant is Save the Children Federation, Inc. (“Complainant”),
represented by William G. Pecau of Steptoe & Johnson LLP,
1330 Connecticut Ave. NW, Washington, DC 20036. Respondent is Unasi Inc. (“Respondent”),
Galerias Alvear 3, Zona 5, Panama 5235, Panama.
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain names at issue are <savethechildrenn.org>, <
savethechilden.org>, <savethechilden.com>, <savethchildren.org>,
<savethchildren.com>, <saevthechildren.org>, <savethechildre.org>,
<savethechildre.com> and <asavethechildren.org>,
registered with Iholdings.com, Inc. d/b/a Dotregistrar.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.
James
A. Carmody, Esq., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on July
7, 2005; the National Arbitration Forum received a hard copy of the Complaint
on July 11, 2005.
On
July 7, 2005, Iholdings.com, Inc.d/b/a Dotregistrar.com confirmed by e-mail to
the National Arbitration Forum that the <savethechildrenn.org>, <savethechilden.org>,
<savethechilden.com>, <savethchildren.org>, <savethchildren.com>,
<saevthechildren.org>, <savethechildre.org>, <savethechildre.com>
and <asavethechildren.org> domain names are registered with Iholdings.com,
Inc. d/b/a Dotregistrar.com and that Respondent is the current registrant of
the names. Iholdings.com, Inc. d/b/a Dotregistrar.com has verified that
Respondent is bound by the Iholdings.com, Inc. d/b/a Dotregistrar.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
July 12, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 1, 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@savethechildrenn.org, postmaster@savethechilden.org,
postmaster@savethechilden.com, postmaster@savethchildren.org, postmaster@savethchildren.com,
postmaster@saevthechildren.org, postmaster@savethechildre.org, postmaster@savethechildre.com,
postmaster@asavethechildren.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 National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
August 8, 2005, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration Forum appointed James A.
Carmody, Esq., as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the National Arbitration 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 National Arbitration 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 Respondent to Complainant.
A.
Complainant makes the following
assertions:
1. Respondent’s <savethechildrenn.org>,
<savethechilden.org>, <savethechilden.com>, <savethchildren.org>,
<savethchildren.com>, <saevthechildren.org>, <savethechildre.org>,
<savethechildre.com> and <asavethechildren.org>
domain names are identical/confusingly similar to Complainant’s SAVE THE
CHILDREN mark.
2. Respondent does not have any rights or
legitimate interests in the <savethechildrenn.org>, <savethechilden.org>,
<savethechilden.com>, <savethchildren.org>, <savethchildren.com>,
<saevthechildren.org>, <savethechildre.org>, <savethechildre.com>
and <asavethechildren.org> domain names.
3. Respondent registered and used the <savethechildrenn.org>,
<savethechilden.org>, <savethechilden.com>, <savethchildren.org>,
<savethchildren.com>, <saevthechildren.org>, <savethechildre.org>,
<savethechildre.com> and <asavethechildren.org>
domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant, Save the Children Federation, Inc., is a
not-for-profit corporation that provides services for impoverished children of
all ages in the United States and throughout the world. Since 1939, Complainant has offered a
variety of services, including education, fund-raising and other assistance. Complainant is now one of the most famous
charities in the United States.
Complainant holds registrations with the United States Patent and
Trademark Office (“USPTO”) for the SAVE THE CHILDREN mark (Reg. No. 991617
issued August 20, 1974 and Reg. No. 2,582,204 issued June 18, 2002). Complainant has used its mark continuously
and exclusively in commerce for sixty-six years.
Complainant has maintained a website at the <savethechildren.org>
domain name since 1995. In addition,
Complainant holds the registration for the <savethechildren.com> domain
name. Complainant’s website explains
Complainant’s mission and programs for helping children and also functions as a
means through which Complainant may reach out to potential volunteers, sponsors
and donors. Complainants website is an
essential part of Complainant’s ability to further its charitable purpose.
Respondent registered the <savethechilden.org>, <savethchildren.org>, <saevthechildren.org>,
<savethechildre.org>, <asavethechildren.org> domain names on January 3, 2005 and the <savethchildren.com>,
<savethechilden.com>, <savethechildre.com> domain names on on January 5, 2005. Respondent registered the <savethechildrenn.org>
domain name on January 6, 2005.
Respondent is using the disputed domain names to redirect Internet users
to a website that displays a search engine and numerous links to third parties,
some of which offer competing charitable services. Presumably, Respondent receives click-through fees for diverting
Internet users to third-party websites through the website at the disputed
domain names.
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 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. The Panel is entitled to
accept all reasonable allegations and inferences set forth in the Complaint as
true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing,
inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the
respondent’s failure to respond allows all reasonable inferences of fact in the
allegations of the complaint to be deemed true); see also 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.”).
Paragraph 4(a)
of the Policy requires that 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 Respondent
is identical or confusingly similar to a trademark or service mark in which
Complainant has rights; and
(2) 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
asserts rights in the SAVE THE CHILDREN mark based on its registration of the
mark with the USPTO. It is
well-established under the Policy that a complainant’s registration of a mark
with a federal authority establishes a prima facie case of the
complainant’s rights, which the respondent may rebut. See Janus Int’l
Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (“Panel decisions
have held that 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.”); see also
Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”). Without a response from Respondent,
there is no challenge to Complainant’s prima facie case of rights in the
mark. The Panel, therefore, determines
that Complainant has rights in the SAVE THE CHILDREN mark for the purposes of Policy ¶ 4(a)(i). See U.S. Office of Pers. Mgmt. v. MS
Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has
made a determination that a mark is registrable, by so issuing a registration,
as indeed was the case here, an ICANN panel is not empowered to nor should it
disturb that determination.”).
Each
of the disputed domain names is comprised of a misspelling of Complainant’s SAVE THE CHILDREN mark formed by adding a
letter to or deleting a letter from Complainant’s mark. Changing one letter in Complainant’s mark
constitutes typosquatting and is not sufficient to distinguish the disputed
domain names from Complainant’s mark.
The disputed domain names are confusingly similar to Complainant’s mark
pursuant to Policy ¶ 4(a)(i). See
Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that
the <neimanmacus.com> domain name was a
simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was
evidence that the domain name was confusingly similar to the mark); 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 STATE FARM
mark).
The
Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
It has been
established under the Policy that the complainant has the initial burden of
proving that the respondent lacks rights and legitimate interests in the
disputed domain names. In Compagnie
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May
14, 2001), the panel held:
Proving
that the Respondent has no rights or legitimate interests in respect of the
Domain Name requires the Complainant to prove a negative. For the purposes of
this sub paragraph, however, it is sufficient for the Complainant to show a
prima facie case and the burden of proof is then shifted on to the shoulders of
Respondent. In those circumstances, the
common approach is for respondents to seek to bring themselves within one of
the examples of paragraph 4(c) or put forward some other reason why they can
fairly be said to have a relevant right or legitimate interests in respect of
the domain name in question.
Id.; see also Do The Hustle, LLC
v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that where the
complainant has asserted that the respondent has no rights or legitimate
interests with respect to the domain name it is incumbent on the respondent to
come forward with concrete evidence rebutting this assertion because this
information is “uniquely within the knowledge and control of the
respondent”). Having found that
Complainant has met its initial burden by establishing a prima facie
case, the Panel will now analyze whether Respondent has met its burden to
establish rights or legitimate interests in the disputed domains name under
Policy ¶ 4(c).
Complainant
asserts that Respondent is not commonly known by the disputed domain
names. According to the WHOIS
information for the disputed domain names, Respondent is known as “Unasi
Inc.” Because this information is the
only evidence of Respondent’s identity, the Panel does not have any evidence to
challenge Complainant’s contentions.
Without a response from Respondent to rebut Complainant’s evidence, the
Panel finds that Respondent has failed to establish rights or legitimate
interests in the domain name under Policy ¶ 4(c)(ii). See Am. Online, Inc. v. World Photo Video & Imaging
Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the
respondent was not commonly known by <aolcamera.com> or
<aolcameras.com> because the respondent was doing business as “Sunset
Camera” and “World Photo Video & Imaging Corp.”); see also Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where
the respondent was not commonly known by the mark and never applied for a
license or permission from the complainant to use the trademarked name).
Respondent is
using the disputed domain names to redirect Internet users searching for
information regarding Complainant’s SAVE THE CHILDREN mark to a website that
features a generic search engine and displays links to third-party websites,
some of which compete with Complainant’s charitable work. The Panel infers that Respondent receives
referral fees for linking Internet users to third-party websites via
Respondent’s website. Such commercial
use does not constitute a use in connection with a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or
fair use pursuant to Policy ¶ 4(c)(iii).
See Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini,
D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting
consumers against their will to another site, does not qualify as a bona fide
offering of goods or services, whatever may be the goods or services offered at
that site.”); see also WeddingChannel.com Inc. v. Vasiliev, FA
156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users
to websites unrelated to the complainant’s mark, websites where the respondent
presumably receives a referral fee for each misdirected Internet user, was not
a bona fide offering of goods or services as contemplated by the
Policy); see also Disney Enters., Inc. v. Dot Stop, FA
145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s
diversionary use of the complainant’s mark to attract Internet users to its own
website, which contained a series of hyperlinks to unrelated websites, was
neither a bona fide offering of goods or services nor a legitimate
noncommercial or fair use of the disputed domain names).
The
Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The
disputed domain names resolve to a website that features a generic search
engine and links to a variety of products and services. The Panel presumes that Respondent receives
a commission for diverting Internet users to third-party websites via the
search engine and links located at Respondent’s website. Furthermore, by using misspelled versions of
Complainant’s SAVE THE CHILDREN mark in the domain names, Respondent is
creating a likelihood of confusion and attempting to attract Internet users to
Respondent’s website for Respondent’s commercial gain. The Panel finds that these circumstances are
evidence that Respondent registered and used the disputed domain names in bad
faith pursuant to Policy ¶ 4(b)(iv).
See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12,
2000) (finding bad faith where the respondent registered the domain name
<bigtex.net> to infringe on the complainant’s goodwill and attract
Internet users to the respondent’s website); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's
prior use of the <mailonsunday.com> domain name is evidence of bad faith
pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to
Complainant's competitors and Respondent presumably commercially benefited from
the misleading domain name by receiving ‘click-through-fees.’”); see also
Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003)
(“Registration and use of a domain name that incorporates another's mark with
the intent to deceive Internet users in regard to the source or affiliation of
the domain name is evidence of bad faith.”).
The
disputed domain names registered by Respondent consist of misspelled versions
of Complainant’s well-known SAVE THE CHILDREN mark. Thus, Respondent is engaging in the practice of “typosquatting”
by taking advantage of a potential typographical error made by Internauts
intending to reach Complainant’s website at the <savethechildren.org> and
<savethechildren.com> domain names, who inadvertnely omit or add a
letter. Under the Policy, typosquatting
is sufficient evidence of bad faith registration and use of the disputed domain
names. The Panel, therefore, finds that
Respondent registered and used the disputed domain names in bad faith pursuant
to Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r
no.valid.email@worldnic.net 1111111111,
D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and
used the domain name in bad faith because the respondent “created ‘a likelihood
of confusion with the complainant’s mark as to the source, sponsorship,
affiliation, or endorsement of the Respondent’s web site or location’. . .
through Respondent’s persistent practice of ‘typosquatting’”); see also Nat’l
Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan.
21, 2003) (“Typosquatting … is the intentional misspelling of words with [the]
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.”).
The
Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <savethechildrenn.org>, <
savethechilden.org>, <savethechilden.com>, <savethchildren.org>,
<savethchildren.com>, <saevthechildren.org>, <savethechildre.org>,
<savethechildre.com> and <asavethechildren.org>
domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated:
August 19, 2005
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