Myspace, Inc. v. Junghu Kang
Claim Number: FA0604000672160
PARTIES
Complainant is Myspace, Inc. (“Complainant”), represented by Ian Ballon, of Greenberg Traurig, LLP, 2450 Colorado Avenue, Suite 400 East, Santa Monica, CA 90404. Respondent is Junghu Kang (“Respondent”), 105-301 sindo-bregnue apt, Chang 5-dong, Dobong-gu, Seoul 132045, KR.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myspce.com>,
registered with Cydentity, Inc. d/b/a Cypack.com.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
Hong Oo Baak as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on April 5, 2006; the National Arbitration Forum received a hard
copy of the Complaint on April 7, 2006.
On April 6, 2006, Cydentity, Inc. d/b/a Cypack.com confirmed by e-mail
to the National Arbitration Forum that the <myspce.com>
domain name is registered with Cydentity, Inc. d/b/a Cypack.com and that the
Respondent is the current registrant of the name. Cydentity, Inc. d/b/a Cypack.com has verified that Respondent is
bound by the Cydentity, Inc. d/b/a Cypack.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 April 17, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of May 8, 2006 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@myspce.com by e-mail.
A Response was received on May 25, 2006.
An Additional Submission by Complainant was received on May 30, 2006, which complies with Supplemental Rule 7.
On June 5, 2006, pursuant to
Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hong
Oo Baak as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant obtained registration with the
United States Patent and Trademark Office of the mark of MYSPACE (hereinafter
referred to as the “Mark”) on December 14, 2004 in connection with Internet
based dating and social networking services. Since its launch in mid-2003, Myspace.com has become the second
most visited website in the world, attracting over an estimated 66 million
users.
Complainant contends that the Disputed Domain Name was transferred from Rickson
Rodricks to Respondent.
Complainant asserts that the Disputed Domain Name, MYSPCE.COM constitutes
typographical variations of the Mark, so it is confusingly similar to the Mark.
Complainant also asserts that the Disputed
Domain Name has not legitimate rights on the ground that Respondent is not
commonly known by the Disputed Domain Name and that Respondent makes use of the
Disputed Domain Name for the purpose of redirecting mistaken typists to
Respondent’s site.
Lastly, Complainant asserts that the Disputed
Domain Name was registered and is being used in bad faith because Respondent
has an intention to divert Internet users who misspell or mistype the Mark from
Complainant’s website to Respondent’s website.
B. Respondent
Respondent contends i) that he legitimately purchased the Disputed Domain Name
for a considerable amount of money from Rickson Rodricks because he trusted
Rickson Rodircks who said that Rickson Rodircks had developed the Disputed
Domain Name for a long time and ii) that the Disputed Domain Name has obtained
the name recognition.
Respondent asserts that he has been investing a large amount of money in
utilizing the Disputed Domain Name.
Respondent contends that the Mark is
confusingly similar to the Disputed Domain Name.
Respondent asserts that he has legitimate interests because he purchased the
Disputed Domain Name with the purpose of developing a search engine as powerful
as Yahoo or Google.
Respondent also asserts that he does not use the Disputed Domain Name with
unjustifiable intention. Respondent
contends that he will operate the site with the Disputed Domain Name in the
near future and he is in the process of developing a searching engine.
Respondent does not dispute against the fact that Complainant has been using
the Mark since its launch in mid- 2003.
C. Additional Submissions
1)
Complainant
Complaint contends that Respondent’s assertion that he purchased the Disputed
Domain Name due to its name recognition is an admission that he chose the
Disputed Domain Name to benefit from the name recognition of Complainant’s Mark
without the authority to do so. Complaint
asserts that the name recognition Respondent mentioned means actually that of
the Mark, and not of the Disputed Domain Name, because “Myspce” which stands
for nothing is hard to remember while “Myspace” having a meaning in English is
easy to remember.
FINDINGS
1.
Complainant started to use the
Mark when it launched it business in mid-2003.
2.
Complainant filed for the
registration with the United States Patent and Trademark Office of the Mark on
December 1, 2003 in connection with Internet based dating, introduction and
social networking services.
3.
Complainant obtained registration with
the United States Patent and Trademark Office of the Mark on December 14, 2004
as registration number 2911041 in connection with internet based dating,
introduction and social networking services.
4.
Complainant’s web site whose
domain name is the Mark has become the second most popular site on the Internet
as of March 29, 2006.
5. The Disputed Domain Name was registered on
November 14, 2003.
6. Respondent is not using the Disputed Domain
Name as of June 19, 2006.
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, the 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.
The Disputed Domain
Name shows a little difference in spelling by missing only “a” from the Mark. A slight difference in spelling between the
Mark and the Disputed Domain Name does not reduce the confusing similarity. See, e.g. Washington Mutual, Inc. v.
Phayez, Inc., Case No. D2003-0283,
Neuberger Berman, Inc. v. Jacobsen, Case No. D2000-0323.
Respondent also
admits in his Response that there is similarity between the Mark and the
Disputed Domain Name.
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Given the facts that a substantial number of people visit Complainant’s website
with the Mark and the Disputed Domain Name is confusingly similar to the Mark,
the purpose of using the Disputed Domain Name is to divert Internet users who
mistakenly mistype the Mark to Respondent’s site.
Even though the Disputed Domain Name was used by Richard Rodricks or any body before
the notice to Respondent of this dispute, a use that merely operates to
redirect mistaken typists to other sites is not enough to create a legitimate
use without a greater connection between the domain name and the redirected
site. See, e.g. Duction, Inc. .v
Zuccarini, Case No. D2000-1369, Washington Mutual, Inc. v. Phayez, Inc.,
Case No. D2003-0283.
There is no greater connection between the Disputed Domain Name and the
Redirected site, given the fact that the Respondent does not assert that
the Disputed Domain Name has any meaning in any language in the world.
In addition, Respondent failed to show that he or his website has been commonly
known by the Disputed Domain Name. The
name recognition Respondent asserted in his Response is found to come from the
Mark and not from the Disputed Domain Name.
Accordingly, the Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Respondent misspells
the Mark with intent to intercept internet users from Complainant’s web site,
given the fact that Complainant’s website is a popular website and the Disputed
Domain Name is a misspelling of the Mark which is highly likely to occur. This typosquatting is evidence of bad
faith. See, e.g.Yahoo! Inc. v. Data
Art Corp., Case No. D2000-0587, Compagnie Generale des Etablissements Michelin v. Collazo D2004-1095.
Accordingly, 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 relief shall be GRANTED.
Accordingly, it is Ordered that the <myspce.com>
domain name be TRANSFERRED from Respondent to Complainant.
Hong Oo Baak, Panelist
Dated: June
19, 2006
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