ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The complainant is Spiegel Catalog, Inc., a United States corporation located in the city of Downers Grove, State of Illinois, the United States of America. The respondent is John Zuccarini, an individual having an address at 957 Briston Pike, Suite D6, Andalusia, Pennsylvania, United States of America.
The domain names at issue are speigals.com, speigels.com, spiegals.com, and spiegles.com, which domain names are registered with CORE Internet Counsel of Registrars.
2. Procedural History
A complaint was filed online through eResolution's Website on May 31, 2000. The hard copy of the complaint form was received on June 7, 2000. The required payment of fees was received on May 31, 2000.
The eResolution Clerk:
(1) confirmed the identity of the registrar for the contested domain name as CORE Internet Counsel of Registrars;
(2) checked the registrar's Whois database and confirmed all the required contact information for respondent, except that there was no listing for the billing contact. An email was sent to the Registrar to confirm the name of the billing contact and to obtain a copy of the Registration Agreement on June 6, 2000. The requested information was received on June 15, 2000;
(3) checked to see if the contested domain names resolved to active web pages, and found that they did; and
(4) verified that the complaint complied with the requirements of the Rules.
On June 15, 2000, The Clerk fulfilled all its responsibilities under paragraph 2(a) of the Uniform Rules in connection with forwarding the Complaint to the Respondent.Accordingly June 15, 2000 is the commencement date of the proceedings pursuant to Uniform Rules, Rule 4(a).
On June 15, 2000, the Clerk of eResolution notified the complainant, the respondent, the concerned registrar, and ICANN of the date of commencement of the proceedings.
The complaint official notification, and all the annexes were sent by UPS to the Respondent's various addresses. According the the UPS tracking system, all were delivered.
On July 6, 2000, the Clerk sent an email to the Respondent's personal email address informing him that the response was overdue and that in the absence of exceptional circumstances, the Panel would decide the dispute based upon the complaint.
On July 7, 2000, the Respondent had still not submitted his response.
On July 11, 2000, the Clerk's office contacted Mr. M. Scott Donahey, Esq. and requested that he act as panelist in this case.
On July 12, 2000, Mr. M. Scott Donahey, Esq., agreed to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.
On July 12, 2000, the Clerk's office forwarded a user name and a password to M. Scott Donahey, Esq., allowing him to access the complaint form, the response form, and the evidence through eResolution's Automated Docket Management System.
On July 12, 2000, the parties were notified that Mr. Donahey had been appointed and that a decision was to be, save in exceptional circumstances, handed down on July 25, 2000. The date for decision was later extended to July 28, 2000.
3. Factual Background
Complainant has continuously used the trademark and service mark "Spiegel" to identify its products and services since 1929. Complainant is known in the United States and throughout the world as a merchandiser of a variety of clothing, personal goods, electronic products, home and outdoor products, largely through its catalog. Complainant's trademark is registered in connection with retail services in the United States, Bolivia, Canada, Colombia, Ecuador, Japan, South Korea, Mexico, and the Russian Federation.
In mid-December 1999, Respondent registered the domain names at issue. The domain names resolve to web sites where various merchandise, including music format cd's, internet answering machines, and other items are offered.
4. Parties' Contentions
Complainant contends that respondent has registered domain names which are confusingly similar to the trademark registered and used by complainant, that respondent has no rights or legitimate interests in respect of the domain names at issue, and that respondent has registered and is using the domain names in bad faith.
Respondent has failed to respond to the allegations.
5. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall 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."
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
2) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
3) the domain name has been registered and used in bad faith.
The domain names at issue are confusingly similar to complainant's trademark and service mark. They are typographical errors or confused spellings of that mark designed to lead a consumer who misspells or misenters complainant's name to a web site from which respondent will profit. Respondent has demonstrated no legitimate rights or interests in the domain name at issue.
The final issue is whether the domain name has been registered and is being used in bad faith.
Paragraph 4,b,iv of the Policy, provides that "the following circumstances . . . shall be evidence of the registration and use of a domain name in bad faith: . . . by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location." (Emphasis added.)
By using misspellings of complainant's well known marks, respondent seeks to attract prospective customers who misenter or misspell complainant's name when seeking to find complainant's web site on the world wide web. When such prospective customers arrive at respondent's web sites, they are offered goods and services from which respondent presumably profits. This is evidence of registration and use in bad faith, as set out in paragraph 4,b,iv of the Policy. This practice has also been condemned and held to be in bad faith by previous panel decisions. See, e.g., America Media Operations, Inc. v. Erik Simons, ICANN Case No. AF-0134; World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, ICANN Case No. D2000-0256; InfoSpace.com, Inc. v. Registrar Administrator Lew Blanck, ICANN Case No. D2000-0069; ABC Distributing, Inc. v. Alex Fedorov, ICANN Case No. FA 94787; and General Electric Company v. Fisher Zvieli a/k/a Zvieli Fisher, ICANN Case No. D2000-0377.
For all of the foregoing reasons, the Panel decides that the domain names registered by respondent are confusingly similar to the trademark and service mark in which the complainant has rights, and that the respondent has no rights or legitimate interests in respect of the domain names, and that the respondent's domain names have been registered and are being used in bad faith. Accordingly, pursuant to Paragraph 4,i of the Policy, the Panel requires that the registration of the domain names speigals.com, speigels.com, spiegals.com, and spiegles.com be transferred to the complainant.
Dated: July 28, 2000, at Palo Alto, California, USA
(s) M. Scott Donahey