AccuWeather, Inc. v. Accuweathe.com

[Indexed as: AccuWeather v. Accuweathe.com]
[Indexed as: ACCUWEATHE.COM]

National Arbitration Forum
Administrative Panel Decision

Forum File FA0008000095400
Commenced: 14 August 2000
Judgment: 13 September, 2000

Presiding Panelist: James A. Carmody

Domain name - Domain name dispute resolution policy - U.S. Service mark -Misspelling - Confusingly similar - Bad faith registration - Bad faith use – Commercial gain.

Complainant was registrant of United States service mark ACCU-WEATHER..  Under this mark Complainant has provided commercial weather information around the globe.  Complainant registered the domain name accuweather.com.  Subsequently, Respondent registered the domain name, acuweather.com, which was linked to pornographic web sites; this registration was held to be in violation of ICANN policy.  In this case, the Respondent registered the domain name, accuweathe.com, which was similarly linked. 

Held, Name Transferred to Complainant.

The Respondent’s domain name is confusingly similar to the Complainant’s service mark and domain name, which has merely been varied in spelling.  Diverting customers for the Respondent’s profit is not a legitimate noncommercial use of the domain name or a bona fide for profit use of the domain name, and accordingly the Respondent has no rights or legitimate interests in the domain name. 

By attempting to attract Internet customers to its pornographic web site for commercial gain by using another’s name recognition, the Respondent is established to have registered and used the domain name in bad faith.

Policies referred to

Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999

Panel Decisions referred to

Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000).

Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000).
CCA Indust., Inc. v. Dailey, D2000-0148 (WIPO Apr. 26, 2000).

Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000).
 

Carmody, Panelist: -

PARTIES
The Complainant is AccuWeather, Inc., State College, PA, USA ("Complainant"). The Respondent is Accuweathe.com, Studio City, CA, USA ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is "ACCUWEATHE.COM", registered with Network Solutions Inc ("NSI").

PANELIST 
The Panelist 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 the panelist in this proceeding.
Hon. James A. Carmody, as Panelist.

PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on August 10, 2000; The Forum received a hard copy of the Complaint on August 11, 2000. 
On August 11, 2000, NSI confirmed by e-mail to The Forum that the domain name "ACCUWEATHE.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.
On August 14, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 5, 2000 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@accuweathe.com by e-mail. 
On September 6, 2000, 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 September 11, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed the Hon. James A. Carmody 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 Uniform 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 the Respondent.

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

PARTIES CONTENTIONS
A. Complainant
Complainant asserts that the domain name "ACCUWETHE.COM" is confusingly similar to its ACCU-WEATHER® service mark, where the domain name is spelled identically to the service mark except for the omission of the final "r". Further, the Complainant notes that "weathe" is not a recognized word in the English language.
Complainant further contends that the Respondent has no rights or legitimate interests in the domain name where the Complainant’s mark was registered on December 17, 1985 and had gained worldwide recognition many years before the advent of widespread Internet use. 
Finally the Complainant contends that the Respondent’s registered and is using the domain name in bad faith, given that the mark was well known and the Respondent has no rights or legitimate interest therein. Furthermore, Complainant asserts that persons familiar with the ACCU-WEATHER® mark will mistakenly associate Respondent’s domain name with AccuWeather, Inc., and the Respondent is thus attempting to attract unsuspecting customers to its web site for commercial gain by using the name recognition of the ACCU-WEATHER® mark. Finally, Complainant alleges that the Respondent’s diversion of Internet traffic and resources from Complainant’s own site is causing direct economic harm to Complainant through lost hits and lost customers who have been upset by pornographic materials accessed through Respondent’s site.
 
 
B. Respondent
The Respondent has not submitted a response in this matter.

FINDINGS
Complainant is the owner of ACCU-WEATHER®, U.S. service mark No. 1,376,417 registered December 17, 1985. Under this mark Complainant provides commercial weather information around the globe. Complainant has also registered the domain name "ACCUWEATHER.COM", where it has provided weather information services for the past five years.
The Respondent registered the domain name "ACCUWEATHE.COM". This registration took place long after the Complainant had registered its service mark and after Complainant had registered its own domain name "ACCUWEATHER.COM." The administrative contact for the Respondent, Siavash Behain, previously registered "ACUWEATHER.COM" which was held to be in violation of ICANN policy in an earlier proceeding. The "ACUWEATHER.COM" site was linked to pornographic web sites in an effort to drive traffic to those sites. This panel is now faced with a similar situation regarding to the currently disputed domain name, "ACCUWEATHE.COM".

DISCUSSION 
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("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 Complainant has offered evidence in support of its claims. The Respondent has offered no response. The failure of the Respondent to submit a response permits the inference that the Complainant’s allegations are true. Policy ? 14(b). The failure to respond also supports the inference that the Respondent is aware that its web site is misleading and is intentionally diverting business from the Complainant. Id.
Identical and/or Confusingly Similar
The Complainant has registered the service mark ACCU-WEATHER® and is the owner of the "ACCUWEATHER.COM" domain name. The Respondent has registered the domain name "ACCUWEATHE.COM", merely omitting the final "r" of both the Complainant’s service mark and domain name. 
In similar cases, where the Respondent merely varies the spelling of the Complainant’s mark, a confusingly similar domain name results. See, e.g. Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) ( finding that "misspellings" of a Complainant’s mark or domain name make the Respondent’s domain name confusingly similar).
For this reason, the panel finds that the Respondent’s domain name is confusingly similar to the Complainant’s service mark and domain name.
Rights or Legitimate Interests
The Complainant contends that the Respondent has no rights or legitimate interests in the domain name. The Respondent has not denied this assertion. 
The Respondent is not commonly known by the domain name in question. Policy ? 4.c.(ii).
The Respondent is receiving a windfall of Internet traffic as a result of its registration of the domain name in question. Internet users seeking the Complainant’s site and making a minor typographical error have been diverted to a site offering pornographic content. Diverting customers for the Respondent’s profit is not a legitimate noncommercial use of the domain name or a bona fide for profit use of the domain name. Policy ? 4.c.(i), (iii). 
The Panel determines that the Respondent has no rights or legitimate interests in the domain name.
Registration and Use in Bad Faith
The Complainant contends that the Respondent registered and used the domain name in bad faith. The Respondent has not denied this assertion.
The Respondent is attempting to attract Internet customers to its web site for commercial gain by using the name recognition of the ACCU-WEATHER® mark. Policy ? 4.b.(iv). This is evidence of registration and use in bad faith. See Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 WIPO Apr. 22, 2000) (finding bad faith where the Respondent attempted to attract customers to its website, <efitnesswholesale.com>); 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); CCA Indust., Inc. v. Dailey, D2000-0148 (WIPO Apr. 26, 2000) (finding that "this association with a pornographic web site can itself constitute a bad faith"). The Panel concludes that the Respondent registered and used the domain name in bad faith. 

DECISION
Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted. 
Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "ACCUWEATHE.COM", be transferred from the Respondent to the Complainant.

Domain Name Transferred