AccuWeather, Inc. v. Netchem, Inc.
[Indexed as: AccuWeather, Inc. v. Netchem, Inc.]
[Indexed as: ACCWEATHER.COM and ACCUEATHER.COM]
 National Arbitration Forum 
Claim Number: FA0008000095401

Commenced: 14 August 2000
Judgment: 19 September 2000

Panel Member: Herman D. Michels

Domain names-Domain Name Resolution Policy-Bad faith-Rights and Legitimate Interests-Identical Confusingly Similar-Judgment for Complainant-Domain Names Transferred-Cease and Desist Order from use of Domain Names-Mark known worldwide.

Complainant is a world leader in the provision of commercial weather information and its federally registered ACCU-WEATHER.COM mark has been well-known worldwide for over twenty years. Complainant has conducted business under the domain name for the last five years and its website is a premier site, providing weather information to the world population via Internet. Complainant’s service mark has gained worldwide recognition many years before the widespread use of the Internet and registration of Respondent’s domain names ACCWEATHER.COM and ACCUEATHER.COM. Complainant has the exclusive right to use the ACCU-WEATHER mark.

Held: Domain Name Transferred to Complainant. 

Disputed domain names are virtually identical to Complainant’s mark, therefore the two marks are confusingly similar due to the fact that they are each spelled identically to Complainant’s mark except for the deletion of one letter. Respondent’s deletion of the one letter in each domain name was plainly done in an attempt to capture unsuspecting Internet users who misspell "ACCUWEATHER." 

Respondent does not have any rights or interests in both the domain names since: (a) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question. 

Respondent has registered the domain names and is using said names in bad faith. By using the domain names, Respondent intentionally attempted to attract for commercial gain Internet users to Respondent’s website by creating the likelihood of confusion with Complainant’s mark as to the source, sponsorship affiliation or endorsement of Respondent’s website. Therefore, Respondent has registered the domain names primarily for the purpose of disrupting the business of Complainant. Respondent’s activities constitute an infringement of Complainant’s rights in its mark and has caused and will continue to cause substantial and irreparable harm to Complainant and its business reputation and good will. 

Polices referred to:

ICANN Uniform Domain Name Dispute Policy

Rules of the Uniform Domain Name Dispute Resolution Policy

National Arbitration Forum’s Supplemental Rules of ICANN’s Uniform Domain Resolution Policy

Panel Decisions referred to:

Charles Jourdan Holding AG v. AAIM <http://arbiter.wipo.int/domains/decisions/html/d2000-0403.html>, D2000-0403 (WIPO June 27, 2000).
EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc <http://www.arbforum.com/domains/>., FA 94385 (Nat. Arb. Forum July 7, 2000).
Sunglass Hut Corp. v. AAANET, Inc., FA 94370 (Nat. Arb. Forum May 11, 2000).
Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000).

PARTIES
The Complainant is AccuWeather, Inc., State College, PA, USA ("Complainant"). The Respondent is Netchem, Inc., Milltown, NJ, USA ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME(s) 
The domain names at issue are "ACCWEATHER.COM" and "ACCUEATHER.COM", registered with Alabanza dba BulkRegister.com ("Alabanza").

PANELIST(s) 
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.
Herman D. Michels as Panelist.

PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 08/10/2000; The Forum received a hard copy of the Complaint on 08/11/2000. 
On 08/10/2000, Alabanza confirmed by e-mail to The Forum that the domain names "ACCWEATHER.COM" and "ACCUEATHER.COM" are registered with Alabanza and that the Respondent is the current registrant of the name. 
On 08/14/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 09/05/2000 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@accweather.com <mailto:postmaster@accweather.com> and postmaster@accueather.com <mailto:postmaster@accueather.com> by e-mail. 
On September 11, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed Herman D. Michels as Panelist.

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

PARTIES’ CONTENTIONS
A. Complainant
Complainant contends that it is a world leader in the provision of commercial weather information and its ACCU-WEATHER mark has been well known worldwide for over 20 years. Complainant further contends that it registered and conducted business under the domain name ACCUWEATHER.COM for the last 5 years and that this site is a premier site, providing weather information to the world population via the Internet.
Complainant contends that Respondent’s domain names ACCWEATHER.COM and ACCUEATHER.COM are confusingly similar to its ACCU-WEATHER service mark, and that Respondent has no rights or legitimate interests in its domain names due to the fact that Complainant’s service mark was federally registered on December 17, 1985 and has gained worldwide recognition for many years before the widespread use of the Internet and registration of Respondent’s domain names.
Complainant further contends that Respondent’s registration and use of these domain names is a bad faith attempt to capitalize on the worldwide notoriety of the ACCU-WEATHER mark.
Complainant also contends that the existence of Respondent’s domain names ACCWEATHER.COM and ACCUEATHER.COM will create major business concerns for Complainant due to the fact that these domain names are automatically pushed to "www.kbids.com." This website is a one-page site that offers domain names for sale for extremely large sums of money and Complainant complains that Respondent’s registration of these domain names is to capture unsuspecting Internet consumers who mistakenly misspell ACCUWEATHER.
Complainant also contends that Respondent is intentionally attempting to attract unsuspecting consumers to its website for commercial gain by using the worldwide name recognition of ACCU-WEATHER mark and that consumers searching for weather information will not be able to determine that Respondent’s domain names are not owned by or affiliated in any way with Complainant. Unsuspecting Internet users are directed to Respondent’s sites and that such use of the domain names is plainly an infringement upon Complainant’s rights in the ACCU-WEATHER mark. Further, Complainant contends that through Respondent’s registration and use of the ACCWEATHER.COM and ACCUEATHER.COM domain names Respondent is illegally trading on Complainant’s mark and domain name and is receiving a windfall of Internet traffic.
Finally, Complainant contends that Respondent is illegally diverting Internet traffic and resources from its site, causing economic harm to it and that Respondent’s actions are in direct violation of the Uniform Domain Name Resolution Policy adopted by Network Solutions, Inc.
B. Respondent
Respondent contends that it did not know that ACCU-WEATHER is a trademark when it registered the domain names ACCWEATHER.COM and ACCUEATHER.COM. It argues that ACCWEATHER.COM is a meaningful name (the "AC" standing for air conditioning) and that ACCWEATHER.COM is very similar to ACWEATHER.COM. Since Respondent is the owner of ACWEATHER.COM, it claims that it is entitled to claim ACCWEATHER.COM. 
Respondent further argues that it would like to keep ACWEATHER.COM and ACCWEATHER.COM and, if necessary, give up ACCUEATHER.COM just to avoid further complaints.
Finally, Respondent points out that ACCWEATHER.COM and the trademark ACCU-WEATHER.COM are different by six letters, and if ACCWEATHER.COM could be taken from it, this would set an unusual precedent and create huge confusion for the free world. 

FINDINGS
Complainant is a world leader in the provision of commercial weather information and its ACCU-WEATHER mark has been well-known worldwide for over twenty years. Complainant has registered and conducted business under the domain name ACCUWEATHER.COM for the last five years and that its website is a premier site, providing weather information to the world population via Internet. Additionally, Complainant’s servicemark ACCU-WEATHER was federally registered on December 17, 1985 and has gained worldwide recognition many years before the widespread use of the Internet and registration of Respondent’s domain names ACCWEATHER.COM and ACCUEATHER.COM. Complainant has the exclusive right to use the ACCU-WEATHER mark.
The domain names ACCWEATHER.COM and ACCUEATHER.COM registered by Respondent are confusingly similar to Complainant’s mark ACCU-WEATHER due to the fact that they are each spelled identically to Complainant’s mark except for the deletion of one letter. Respondent’s deletion of the one letter in each domain name was plainly done in an attempt to capture unsuspecting Internet users who misspell "ACCUWEATHER." Respondent does not have any rights or interests in the domain names ACCU-WEATHER.COM and ACCUEATHER.COM. 
Respondent has registered the domain names ACCWEATHER.COM and ACCUEATHER.COM and is using said names in bad faith. By using the domain names ACCUWEATHER.COM and ACCUEATHER.COM, Respondent intentionally attempted to attract for commercial gain Internet users to Respondent’s website by creating the likelihood of confusion with Complainant’s mark ACCU-WEATHER as to the source, sponsorship affiliation or endorsement of Respondent’s website. See R4(b)iv.
Additionally, Respondent registered and used the domain names ACCWEATHER.COM and ACCUEATHER.COM in bad faith by virtue of the fact that Respondent registered the domain names primarily for the purpose of disrupting the business of Complainant. See R4(b)iii.
Respondent’s activities constitute an infringement of Complainant’s rights in its ACCU-WEATHER mark and has caused and will continue to cause substantial and irreparable harm to Complainant and its business reputation and good will.

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 canceled 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
The Complainant contends that the Respondent’s domain name is confusingly similar to the Complainant’s ACCU-WEATHER service mark. The domain names are spelled identically to the Complainant’s mark except for the deletion of one letter. Misspellings or typographical variations of registered marks cause confusing similarity with the mark. See Sunglass Hut Corp. v. AAANET, Inc., FA 94370 (Nat. Arb. Forum May 11, 2000) (finding that the domain name <sunglasshot.com> is confusingly similar to the mark SUNGLASS HUT); Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that the domain names <beanybaby.com>, <beaniesbabies.com>, <beanybabies.com> are confusingly similar to Complainant’s mark "Beanie Babies").
The domain names ACCWEATHER.COM and ACCUEATHER.COM registered by Respondent are confusingly similar to Complaint’s ACCU-WEATHER mark which was registered on December 17, 1985 and in which Complainant has all rights and interests.
 Rights or Legitimate Interests
Respondent does not have any substantial rights or legitimate interests in respect to the domain names ACCWEATHER.COM and ACCUEATHER.COM. See Charles Jourdan Holding AG v. AAIM <http://arbiter.wipo.int/domains/decisions/html/d2000-0403.html>, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).
 Registration and Use in Bad Faith
Respondent registered the domain names ACCWEATHER.com and ACCUEATHER.COM with the intention of disrupting the business of the Complainant. It did this by creating a likelihood of confusion with Complainant’s mark ACCU-WEATHER. See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc <http://www.arbforum.com/domains/>., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the Complainant's marks suggests that the Respondent, the Complainant’s competitor, registered the names primarily for the purpose of disrupting the Complainant's business).
 Respondent has registered and used the domain names ACCWEATHER.COM and ACCUEATHER.COM in bad faith.

DECISION
Based upon the above findings and conclusions and pursuant to Rule 4(i) of the Rules of the Uniform Domain Name Dispute Resolution Policy and the National Arbitration Forum’s Supplemental Rules of ICANN’s Uniform Domain Resolution Policy, I hereby order that 1) the domain names ACCWEATHER.COM and ACCUEATHER.COM registered by Respondent Netchem, Inc. be transferred forthwith to Complainant AccuWeather, Inc. and 2) Respondent Netchem, Inc. shall cease and desist from any and all use of the domain names ACCWEATHER.COM and ACCUEATHER.COM.  Herman D. Michels
Dated: September 19, 2000

Domain Name Transferred