Alta Vista Company v. Alt Pile Co.

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

AltaVista Company v. Alt Pile Co.

Case No. D2002-0933

1. The Parties

The Complainant is AltaVista Company, Palo Alto, CA 94304, United States of

America, represented by Greer C. Bosworth of United States of America.

The Respondent is Alt Pile Co., Moscow 131223, Russian Federation.

2. The Domain Name and Registrar

The disputed domain name <altivista.com> is registered with BulkRegister.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the

“Center”) on October 9, 2002. On October 10, 2002, the Center transmitted by

email to BulkRegister.com a request for registrar verification in connection

with the domain name at issue. On October 11, 2002, BulkRegister.com transmitted

by email to the Center its verification response, stating (1) that the domain

name altivista.com is registered with BulkRegister.com, and (2) that the registrant’s

name is Alt Pile Co. and not Vladimir Dytov as set out in the Complaint, and

providing the contact details for the administrative, billing, and technical

contact. In response to a notification by the Center that the Complaint was

administratively deficient, the Complainant filed an amendment to the Complaint

on October 16, 2002. 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”), 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(a) and 4(a), the Center formally

notified the Respondent of the Complaint, and the proceedings commenced on October

24, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response

was November 13, 2002. The Respondent did not submit any response. Accordingly,

the Center notified the Respondent’s default on November 14, 2002.

The Center appointed Michael Treis as the sole panelist in this matter on December

2, 2002. 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

Based on the Complainant’s assertions, supported by the documents enclosed

as appen-dix to the Complaint, and undisputed by the Respondent because of its

default, and further based on general knowledge and on publicly available information

from the Internet, the Panel finds the following:

The Complainant is a well known US company which provides Internet search engine

services and search software. Its website <altavista.com> is a well known

website for anyone wishing to search for specific Internet websites. Complainant

has invested heavily in the trademark ALTAVISTA, and many consumers worldwide

identify this trademark with Complainant’s software and services. Complainant

owns various trademark registrations for ALTAVISTA, and such trademark registrations

cover a wide variety of computer, internet, printed matter and educational goods

and services, including research software. Complainant also owns trademark rights

in relation to ALTAVISTA in the Russian Federation, namely registration No.

178879.

The Respondent has registered the domain name <altivista.com> in April

2002. The <altivista.com > URL directs Internet users to a website that

allows users to perform keyword searches of and provides links to gambling,

pornography and certain other content. In particular, the website contains a

section called “hot topics”, where the topic “sex” is mentioned as No. 1. A

person clicking on this topic is directed to a summary of possible pornographic

websites. Moreover, Respondent’s <altivista.com> website is formatted

in a manner resembling the Complainants website.

5. Parties’ Contentions

A. Complainant

The domain name <altivista.com> is confusingly similar to the Complainant’s

mark ALTAVISTA as required by paragraph 4(a)(i) of the Policy. The only difference

be-tween the two names is the change of the character "a" to "i"

within the name. The change of a single character to an established trademark

is not enough to avoid confus-ing similarity.

When users encounter the domain name <altivista.com> on the Internet

they naturally will think of the Complainant, which has a wide-ranging presence

on the Internet, be-cause of the confusingly similar appearance of the two marks.

The Respondent is not a licensee of the Complainant, nor is he otherwise authorized

to use the Complainant’s mark.

The Respondent has not used the domain name <altivista.com> for any business

pur-pose other than attracting web traffic based upon the provision of gambling,

pornogra-phy and other content since its registration of the domain name in

April 2002.

The Respondent does not use <altivista.com>, or any other known permutation

thereof, as its business name in any way other in connection with the provision

of gambling and pornographic content on the Internet, and there is no evidence

that it did so prior to its registration and use of the domain name <altivista.com>.

The Respondent must have known of Complainant’s trademark.

The Respondent, since his registration of the domain name, has failed to make

good faith use of the domain name. Further, Respondent's bad faith is further

demonstrated by the fact that Respondent created a domain name that is similar

to Complainant's do-main name except for one letter and Respondent mimics Complainant's

look and feel on its web site.

The Respondent has not ceased this wrongful behavior despite the Complainant’s

re-peated written requests to cease and desist from use of the domain.

As a result, the Respondent’s domain name <altivista.com> has been registered

and is being used in bad faith as required by paragraph 4(a)(iii) of the Policy

B. Respondent

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

6. Discussion and Findings

Paragraph 4 (a) of the Policy lists three tests which the Complainant must

satisfy in order to prevail. Complainant must satisfy that:

(i) the domain name is identical or confusingly similar to a trademark or service

mark in which the Complainants has rights; and

(ii) the Respondent has no rights or legitimate interest in respect of such

domain name; and

(iii) the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The domain name <altavista.com> is clearly confusingly similar to the

trademark ALTAVISTA in which the Complainant has rights in many countries, among

which the Russian Federation. The Panel considers the first criterion proved.

B. No Rights or Legitimate Interests in the Domain Name

The Panel has considered the allegation by the Complainant as to the lack of

rights or legitimate interest of the Respondent in respect of the domain name

at issue. These allegations are highly plausible. Paragraph 4 (c) of the Policy

sets out matters which a Respondent is entitled to raise which, if found by

the Panel to be proved based on an evaluation of all evidence presented, could

demonstrate a Respondent’s rights or legitimate interest to a domain name. However,

the Respondent is in default with its response to the Complaint, and there are

therefore no indications whatsoever as to any rights or legitimate interests

of the Respondent in the domain name. The second criterion is therefore proved.

C. The Registration and Use of Domain Name in Bad Faith

As to bad faith registration and use, the Panel considers this criterion proved

for the reasons set out in the Complainant’s submissions, which the Panel accepts.

The link of the domain name <altivista.com> to another website allowing

users to make Internet searches is in itself evidence that Respondent tries

to create a risk of confusion with the Complainant’s trademark and website.

The fact that this website has a certain focus on websites providing opportunities

to gambling and providing pornographic content rein-forces this bad faith. It

shows that Respondent has used the domain name <altivista.com> for the

purpose of attracting web traffic intended for the website of the Complainant,

but directing such web traffic to websites offering gambling, porno-graphic

and other content. This is a practice which unduly exploits the good-will re-lated

to Complainant’s trademark for Respondent’s own commercial interests. By doing

so, the Respondent also tends to associate the Complainant’s trademark with

an Internet search service aiming at website with a highly questionable content.

For this reason, the Respondent’s use of a confusingly similar trademark is

liable to denigrate the Com-plainant and its well-known trademark ALTAVISTA.

The Panel therefore agrees with the Complainant’s assertions that this is a

bad case of cyber squatting.

7. Decision

For the foregoing reasons, the Panel decides:

- that the domain name <altivista.com> is similar to the trademark to

which the Complainant has rights; and

- that the Respondent has no rights or legitimate interest in respect of the

domain name; and

- that the domain name has been registered and is being used in bad faith.

Accordingly, pursuant to paragraph 4 (i) of the policy, the Panel requires

that the regis-tration of the domain name <altivista.com> be transferred

to the Complainant.

Michael Treis

Sole Panelist

Date: December 18, 2002

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