Administrative panel decision wikimedia Foundation, Inc V. Park Gyeong Sook




Yüklə 27.98 Kb.
tarix16.04.2016
ölçüsü27.98 Kb.




ARBITRATION
AND
MEDIATION CENTER



ADMINISTRATIVE PANEL DECISION

Wikimedia Foundation, Inc. v. Park Gyeong Sook

Case No. D2015-1704



1. The Parties

The Complainant is Wikimedia Foundation, Inc. of San Francisco, California, United States of America, internally represented.


The Respondent is Park Gyeong Sook of GimHae-Si, GyeongSang Province, Republic of Korea.


2. The Domain Name and Registrar

The disputed domain name is registered with Wild West Domains, LLC (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2015. On September 25, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.


The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on October 8, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 28, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 29, 2015.
The Center appointed James Bridgeman as the sole panelist in this matter on November 11, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background




On the basis of the evidence adduced by the Complainant this Panel finds that:


the Complainant is the owner of the WIKIPEDIA trademark having approximately 148 trademark registrations worldwide for the WIKIPEDIA mark and international equivalents thereof, the earliest of which is United States Trademark registration number 3,040,722 registered on October 1, 2006 in international class 41 for the following services: “Providing information in the field of general encyclopedic knowledge via the Internet in class 41”;


- the Complainant is the owner of the domain name which was created on January 13, 2001 and provides a well-established website through which the eponymous WIKIPEDIA encyclopedia may be accessed at its website at /“www.wikipedia.org”;


- the Complainant also owns other domain name registrations that incorporate the WIKIPEDIA mark, including , and .


The disputed domain name was created on September 5, 2014 and is registered in the name of the Respondent.


The disputed domain name resolves to a website with limited content except for a statement offering the disputed domain name for sale for EUR 1,900 and sponsored links to third party websites.



5. Parties’ Contentions

A. Complainant

The Complainant submits that it is a non-profit charitable organization dedicated to encouraging the growth, development, and distribution of free, multilingual, educational content. It manages sixteen free knowledge projects which have been built and are maintained by a community of over 70,000 active volunteers. The Complainant’s projects include Wikimedia Commons, a shared media repository of almost 25 million freely usable images, sound files, and video files, Wikitionary an online dictionary and thesaurus, and Wikivoytage, a free, worldwide travel guide. The Complainant’s first and foremost project is Wikipedia, a free, on-line encyclopedia to which the Complainant’s domain name resolves was established in 2001 and is compiled, edited, and maintained by over 70,000 active contributors. The Complainant offers over 35.5 million articles in 288 languages, has nearly 500 million unique visitors each month on the Wikipedia website and it is consistently ranked as one of the top ten most popular web properties in the world.


The Complainant relies on its rights in the above-referenced registered trademarks and further submits that it has acquired extensive common law rights in the WIKIPEDIA mark since its first use in 2001.
The Complainant submits that the disputed domain name is confusingly similar to its WIKIPEDIA trademark arguing that the inherently distinctive mark, WIKIPEDIA, is the dominant feature of the disputed domain name; that the substitution of a single letter in the middle of the mark - the “e” in WIKIPEDIA has been replaced by the letter “i” - does little to diminish the visual similarity between the disputed domain name but rather, it increases the probability of user confusion. In this regard, the Complainant cites the decisions of the UDRP panels in Wikimedia Foundation, Inc. v. Domain Administrator, Fundation Private Whois / Domain Admin, Whois Privacy Corp / Ryan G Foo, PPA Media Services, WIPO Case No. D2015-0967 (August 24, 2015) (“[t]he fact that the Respondent has only altered or removed one letter from the disputed domain names gives them a ‘greater tendency to be confusingly similar to the WIKIPEDIA mark, where the Complainant’s trademark is ‘highly distinctive’”) and Wikimedia Foundation, Inc. v. Moniker Privacy Services/Domain Admin, Frontline Media, LLC, WIPO Case No. D2011--0106 (April 13, 2011) (stating that typo-variations of the Complainant’s mark failed to “diminish the confusing similarity … in terms of sight, sound, and overall appearances”).
The Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name; the Respondent is not commonly known by the disputed domain name; the Respondent is not a licensee of or otherwise affiliated with the Complainant; and the Complainant has never authorized or otherwise condoned or consented to the Respondent’s registration of the disputed domain name.
The Complainant submits that the Respondent has not put the disputed domain name to any legitimate use. Visitors to the Respondent’s website are initially presented with a pop-up window warning of a “Critical Security Warning”. The message continues by informing visitors that their computer “may have been infected with a malicious virus due to recent internet activity”. Visitors subsequently are warned to contact tech support to resolve any potential threats, as a “suspicious connection was trying to access personal and financial information”. Moreover, visitors are warned that their connection will be suspended as a result of Trojan virus. Upon dismissing the pop-up box, visitors are further warned of system errors and are instructed to contact “Certified Live Technicians”. Upon reloading the Respondent’s website, visitors are notified that owner is offering the disputed domain name for EUR 1,900. In addition, visitors have the option of selecting on a variety of sponsored listings.
Although there is a disclaimer at the bottom of the page stating that the content is provided free of charge and negates any relationships with third party advertisers, the Complainant submits that Internet users may associate features of the Respondent’s website with the Complainant and the sponsored links may solicit personal information for site visitors. As a result, this negative connotation is harmful to the Complainant’s goodwill and brand. It is also reasonable to infer that the Respondent earns a monetary fee for redirecting users to third party sites.
In conclusion, the Complainant submits that the disputed domain name was registered and is being used in bad faith. By such use of the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s well-known WIKIPEDIA mark. The Complainant argues that the disputed domain name is a prime example of typo squatting, a profit generating process intended to create user confusion by incorporating a misspelling of a well-known trademark in a domain name. A user attempting to access the Complainant’s website at the could easily be redirected to the Respondent’s website. As a result of the confusing similarity between the disputed domain name and the Complainant’s mark, there is a high probability of diversion of Internet traffic intended for the Complainant’s site to the Respondent’s site due to typographical error.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.




6. Discussion and Findings



Paragraph 4 of the Policy requires the Complainant to establish that:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and


(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.


A. Identical or Confusingly Similar

The Complainant has satisfied this Panel it is the owner of, and has rights in the WIKIPEDIA mark through its above-described portfolio of trademark registrations and at common law through its extensive use of the WIKIPEDIA mark on its website.


This Panel is satisfied that the disputed domain name is confusingly similar to the Complainant’s mark. The disputed domain name is identical to the Complainant’s mark except for the substitution of the single letter, where the letter “e” in WIKIPEDIA has been replaced by the letter “i”. This Panel accepts the Complainant’s submission that the substituted letter does not distinguish the disputed domain name from the mark.
In such circumstances the Complainant has therefore satisfied the first element in the test set out in paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and in such circumstances the burden of production shifts to the Respondent who has not filed any Response or made any submissions.
The disputed domain name is almost identical to the Complainant’s mark. The Respondent is not commonly known by the disputed domain name. The Respondent has merely established a web-page at the domain address which is offering the disputed domain name for sale and providing sponsored links. The Respondent has not acquired any rights or legitimate interests in the disputed domain name by such use. Furthermore, the Complainant has not given the Respondent any right or license to register the disputed domain name which is almost identical visually and aurally to the Complainant’s WIKIPEDIA mark and the name of its website.
This Panel is satisfied that the Respondent has failed to discharge the burden of production required to establish that it has rights or legitimate interests in the disputed domain name and therefore the Complainant has also satisfied the second element of the test in paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Having considered the evidence in the Complaint and in the absence of a Response this Panel is satisfied that on the balance of probabilities this is a classic case of typo-squatting; that the disputed domain name was chosen and registered in bad faith because of its similarity to the Complainant’s WIKIPEDIA mark, with the intention that it would be used to create confusion among Internet users; and that the disputed domain name has since been used in bad faith for that purpose.


On the balance of probabilities, the Respondent is using the disputed domain name in bad faith by taking predatory advantage of the Complainant’s fame and goodwill in the WIKIPEDIA mark and is profiting from revenue from sponsored links by diverting Internet traffic away from its intended destination at the Complainant’s website. In the view of this Panel, there is no other explanation as to why the disputed domain name which is so similar to the Complainant’s distinctive mark would have been chosen.
The manner in which the disputed domain name has since been actually used and the fact that the disputed domain name is expressly offered for sale for EUR 1,900 further convinces this Panel in reaching this conclusion.
The Complainant has therefore succeeded in establishing the third and final element of the test in paragraph 4(a) of the Policy and is entitled to succeed in this Complaint.


7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.



James Bridgeman

Sole Panelist



Date: November 12, 2015



Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©azrefs.org 2016
rəhbərliyinə müraciət

    Ana səhifə