Westmore · UDRP DecisionCostoc.com
The Panel ordered transfer of <costoc.com>. It found the domain confusingly similar to the COSTCO mark because it merely inverted the letters “c” and “o”; found no evidence that the Respondent was authorized, commonly known by the domain, or making a bona fide or legitimate fair use; and found bad-faith registration and use based on typosquatting, the earlier well-known COSTCO mark, deliberate diversion, and the absence of documented rights or a response.
The timeline behind costoc.com
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The decision is a straightforward example of transposition-based typosquatting. Its significance lies in the combination of an obvious typographical variant, trademark rights predating registration, lack of authorization or contrary evidence, and a panel finding of deliberate diversion. It also illustrates that a one-character transposition can satisfy confusing similarity under WIPO Overview 3.0 section 1.9.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Costco Wholesale Membership Inc., Costco Wholesale Corporation v. Domain Administrator, See PrivacyGuardian.org / Markus Tamn Case No. D2018-2523 1. The Parties The Complainants are Costco Wholesale Membership Inc. and Costco Wholesale Corporation of Issaquah, Washington, United States of America (“United States”), represented by Law Office of Mark J. Nielsen, United States. The Respondent is Domain Administrator, See PrivacyGuardian.org of Phoenix, Arizona, United States / Markus Tamn of Jelgava, Latvia. 2. The Domain Name and Registrar The Disputed Domain Name <costoc.com> is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2018. On November 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 5, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 8, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on November 8, 2018. The Center verified that the Complaint together with the amendment to 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 proceedings commenced on November 9, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 30, 2018. The Center appointed Pablo A. Palazzi as the sole panelist in this matter on December 10, 2018. 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 The Complainant is a recognized world leader in warehouse club merchandising and related services. It operates 762 warehouse stores worldwide, including 527 Costco warehouse stores in the United States, Puerto Rico and 235 in Australia, Canada, France, Iceland, Japan, Korea, Mexico, Spain, Taiwan, and the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”). Costco has more than 90 million authorized cardholders worldwide and more than 56 million authorized cardholders in the United States. The Complainant´s stock has been publicly trade since 1985. The Complainant is the owner of numerous trademark registrations including the word "costco", with more than 50 active trademark registrations in the United States. The eldest COSTCO trademark has been registered on February 5, 1985 (Registration No. 1318685). The Complainant holds, amongst others, the following trademarks registrations: - COSTCO (United States) Registration No. 1976242, registered on March 28, 1996; - COSTCO WHOLESALE & Design (United States) Registration No. 2244972, registered on March 11, 1999; - COSTCO.COM (United States) Registration No. 2440636, registered on April 3, 2001; and - COSTCO (United States) Registration No. 2481924, registered on August 28, 2001. Furthermore, the Complainant is the owner of the domain names <costco.com>, <costco.ca>, <costco.com.mx>, <costco.co.uk>, <costco.co.kr>, <costco.com.tw>, and other country code top-level domains (“ccTLDs”) with the term "costco", and maintains an active presence on the Internet using the domain name <costco.com> as its URL. The Disputed Domain Name <costoc.com> has been registered by the Respondent on July 23, 2001. According to the Complainant, the Disputed Domain Name resolves to various websites of companies other than Costco. 5. Parties’ Contentions A. Complainant The Complainant’s contentions can be summarized as follows: Identical or confusingly similar The Complainant alleges that the Disputed Domain Name is confusingly similar to its COSTCO trademark. The Complainant states that the Disputed Domain Name is nothing more than a misspelling of the Complainant’s trademark, since the substitution of a single letter is insignificant for purposes of confusing similarity. The Complainant quotes previous UDRP cases where panels have found that a misspelling of the COSTCO trademark is not sufficient to negate confusing similarity between such a domain name and the COSTO trademark. (See Costco Wholesale Membership Inc., Costco Wholesale Corporation v. Vladimir Snezko, WIPO Case No. D2017-2405 ). Rights or legitimate interests The Complainant submits that the Respondent has no legitimate interest in any domain name, trademark or trade name incorporating or confusingly similar to the COSTCO trademark. In addition, the Complainant has not licensed or otherwise allowed the Respondent to use its trademark or the Disputed Domain Name. What is more, the Respondent is not using the Disputed Domain Name with a bona fide offering of goods or services and has not been commonly by the Disputed Domain Name or any portion thereof. Registration and use in bad faith The Complainant alleges that the Respondent has intentionally registered and is using the Disputed Domain Name in bad faith. The Respondent registered the Disputed Domain Name on July 23, 2001, many years after the COSTCO trademark had become famous. Thus, the Respondent must have been aware of the Complainant’s rights in the COSTCO trademark when it registered the Disputed Domain Name. In addition, the Complainant states that the Respondent registration of the Disputed Domain Name was done in bad faith since it had no legitimate right or business interest in any domain name consisting of a misspelling of the COSTCO trademark. Finally, the Respondent registered and used the Disputed Domain Name to divert Internet users looking for Costco to retail websites in direct competition with Costco. This behavior confuses and deceives Internet users, damages Complainant’s business and reputation, and provides an illicit commercial benefit to Respondent by trading on Complainant’s reputation and goodwill. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which the Complainant must satisfy with respect to the Disputed Domain Name at issue in this case: (i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (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 Based on the evidence submitted, the Panel finds that the Disputed Domain Name <costoc.com> is confusingly similar to the Complaint’s trademark COSTCO. The inversion of the letters “c” and “o” in the Disputed Domain Name represents a misspelling that does not provide sufficient distinction from the Complainant's trademark. This is an example of typosquatting. As section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. (…) Examples of such typos include (i) adjacent keyboard letters, (ii) substitution of similar-appearing characters ( e.g. , upper vs lower-case letters or numbers used to look like letters), (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters, (v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers.” Therefore, the Panel concludes that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name: (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service at issue. There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the trademark in the Disputed Domain Name. The Complainant has prior rights in the trademark, which precede the Respondent’s registration of the Disputed Domain Name. In addition, the Respondent is not known by the Disputed Domain Name. The Respondent has failed to show that it has acquired any rights with respect to the Disputed Domain Name. Moreover, he had the opportunity to demonstrate his rights or legitimate interests, but he did not reply to the Complainant’s contentions. As such, the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Disputed Domain Name was registered on July 23, 2001, while the Complainant’s COSTCO United States Trademark Registration No. 1318685 was granted on February 5, 1985. The Panel is of the view that Respondent registered the Disputed Domain Name in bad faith since it is a typographical misspelling of and is confusingly similar to Complainant’s well-known COSTCO trademark (see, Costco Wholesale Membership Inc., Costco Wholesale Corporation v. Victor Venedictov, WIPO Case No. D2017-2420 ). Therefore, the Panel concludes that the Respondent was aware of the Complainant’s rights when he registered the Disputed Domain Name. The Panel is of the opinion that this is a clear case of typosquatting and that the Respondent deliberately registered the Disputed Domain Name with a slight misspelling with the intent to divert Internet users from the Complainant's website to the Respondent's parking page. Thus, this behavior constitutes bad faith registration and use. In the case at hand, in view of the Respondent’s registration of a domain name confusingly similar to the Complainant’s well known trademark, the absence of any documented rights or legitimate interests of the Respondent in the Disputed Domain Name and its failure to respond to the Complaint, the Panel finds that the Respondent’s lack of use of the Disputed Domain Name also amounts to bad faith. Therefore, taking all the circumstances into account and for all the above reasons, the Panel concludes that the Respondent has registered and is using the Disputed Domain Name in bad faith. 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 <costoc.com> be transferred to the Complainant. Pablo A. Palazzi Sole Panelist Date: December 20, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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