Eyemedvisoncare.com

The timeline behind eyemedvisoncare.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION The United States Shoe Corporation v. Party Night Inc. a/k/a Peter Carrington Claim Number: FA0309000197982 PARTIES Complainant is Susan Mack, of The United States Shoe Corporation, Port Washington, NY, USA (“Complainant”) represented by Karen K. Gaunt, of Keating Muething & Klekamp P.L.L., 1400 Provident Tower, One East Fourth Street, Cincinnati, OH 45202 Respondent is Party Night Inc., a/k/a Peter Carrington, Jan Luykenstraat 58, 1071 CS Amsterdam, Netherlands (“Respondent”). REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <eyemedvisoncare.com>, registered with Key-Systems GmbH d/b/a/ Domain Discount 24. PANEL The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding. The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on September 23, 2003; the Forum received a hard copy of the Complaint on September 25, 2003. On September 25, 2003, Key-Systems confirmed by e-mail to the Forum that the domain name <eyemedvisoncare.com> is registered with Key-Systems and that Respondent is the current registrant of the name. Key-Systems has verified that Respondent is bound by the Key-Systems 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 September 25, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 15, 2003 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@eyemedvisoncare.com by e-mail. 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 October 28, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 Rules for Uniform Domain Name Dispute Resolution Policy (the "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 Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <eyemedvisoncare.com> domain name is confusingly similar to Complainant’s EYEMED VISION CARE mark. 2. Respondent does not have any rights or legitimate interests in the <eyemedvisoncare.com> domain name. 3. Respondent registered and used the <eyemedvisoncare.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, The United States Shoe Corporation, is the owner of five United States Trademark Registrations upon which the Complaint is based. Specifically, Complainant is the owner of U.S. Trademark Registration Nos. 2,367,100 and 2,180,437 for its EYEMED VISION CARE trademark. These registrations were issued to Complainant on November 23,1998 and June 23, 1997, respectively. These trademarks are registered for services relating to eye care and eye health. Complainant has been using these related marks in commerce as early as 1997. Complainant also is the owner of the domain name located at <eyemedvisioncare.com>. Respondent, Party Night Inc. aka “Peter Carrington”, registered the disputed domain name <eyemedvisoncare.com> on November 16, 2002. Respondent is using the domain name to redirect Internet users to a pornographic website located at <amaturevideos.nl>. Respondent has failed to Respond to this Complaint. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) 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 Complainant has established rights in the mark EYEMED VISION CARE through registration with the United States Patent and Trademark Office (“USPTO”) and continuous use in commerce since 1997. The domain name in dispute, <eyemedvisoncare.com>, is nothing more than a misspelling of Complainant’s federally registered EYEMED VISION CARE trademark. Respondent has merely omitted the “i” from “vision”. The intentional misspelling is obvious and apparent, as “vison” has no meaning of any kind, nor does the combined term “visoncare”. Complainant is the owner of the legitimate domain name at <eyemedvisioncare.com>. Respondent’s domain name is nearly identical to Complainant’s registered EYEMED VISION CARE mark, and is certainly confusingly similar. It is established that the omission of a single letter from a trademark does not extend the word or phrase outside the bounds of the protected rights afforded it through the USPTO. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that omitting one letter from Complainant’s trademark rendered the domain name confusingly similar to Complainant’s mark); see also Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to Complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark). Therefore, Complainant has successfully established Policy ¶ 4(a)(i). Rights or Legitimate Interests The fact that Respondent has failed to respond to this Complaint evidences Respondent’s lack of rights or legitimate interests in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed). Furthermore, Respondent registered the domain name, <eyemedvisoncare.com>, on November 16, 2002, many years after Complainant commenced use of its trademark. Respondent is not commonly known by, doing business as, or in any way providing any goods or services relating to the name “Eyemed Vison Care”. In fact, as provided by the domain name registrar Key-Systems, Respondent does business as “Party Night Inc.” Respondent is not affiliated with, licensed by or authorized in any manner to use Complainant’s EYEMED VISION CARE trademark. Thus, Respondent has no rights in the domain name with respect to Policy ¶ 4(c)(ii). See Allen-Edmonds Shoe Corp. v. Takin’ Care of Bus., D2002-0799 (WIPO Oct. 10, 2002) (holding that, “without a specific agreement between the parties, the reseller does not have the right to use the licensor’s trademark as a domain name”); see also Jaccard Corp. v GDC, FA 152463 (Nat. Arb. Forum June 20, 2003) (stating that as there was “no evidence of an agreement between Complainant and Respondent whereby Respondent has either or both of a privilege to have registered, and a privilege to use, the mark that is the subject of one or more of Complainant's trademarks as a domain name” Respondent had no rights or legitimate interests in the disputed domain name). Respondent’s domain name takes advantage of unsuspecting Internet users seeking Complainant’s website by redirecting those who mispel “vision” to a pornographic website located at <amaturevideos.nl>. It is established that using a registered trademark, or a misspelling thereof, in a domain name to redirect users to pornographic websites does not create rights or legitimate interests in the domain name because it is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. See MatchNet plc v. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that it is not a bona fide offering of goods and services to use a domain name for commerical gain by attracting internet users to another site offering adult content and/or sexually explicit material, where such use is calculated to mislead users and tarnish and dilute the complaining party’s trademark); see also Sony Kabushiki Kaisha a/k/a Sony Corp. v. Domain rajadomain@yahoo.com +1.415.0, FA 128701 (Nat. Arb. Forum Dec. 16, 2002) (finding that Respondent’s use of its domain name in order to divert Internet users to a website that offers search engine services and links to adult-oriented websites was not considered to be in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy). Therefore, Complainant has successfully established Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Using a domain name that is confusingly similar to a registered trademark in order to divert Internet users to pornographic web sites is considered to be evidence of bad faith registration and use. See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that linking the domain names in question to graphic adult-orientated websites is evidence of bad faith); see also CCA Indus., Inc. v. Dailey, D2000-0148 (WIPO Apr. 26, 2000) (finding that “this association with a pornographic web site can itself constitute bad faith”). Furthermore, Respondent has engaged in the practice of “typosquatting.” In this case, Respondent has merely omitted the “i” from “vision”, which appeared as a less than coincidental arrangement of words coinciding with Complainant’s trademark. Respondent’s typosquatting is evidence of bad faith. See Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Black & Decker Corp. v. Azra Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the “www” portion of [a] web-address,” evidence that the domain name was registered and used in bad faith). Therefore, Complainant has successfully established Policy ¶ 4(a)(iii). 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 <eyemedvisoncare.com> domain name be TRANSFERRED from Respondent to Complainant. The Honorable Charles K. McCotter, Jr. (Ret.), Panelist Dated: November 5, 2003 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.