The Complainant is Apple Computer, Inc. of Cupertino, California, United States of America, represented by Kilpatrick Townsend & Stockton LLP, United States of America.
The Respondent is All Alams of Warsaw, Poland.
The disputed domain name <aplestore.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 24, 2012. On April 25, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 25, 2012, 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(a) and 4(a), the Center discharged its responsibility to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint, and the proceedings commenced on April 26, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was May 16, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 21, 2012.
The Center appointed Alan L. Limbury as the sole panelist in this matter on May 24, 2012. 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.
The Complainant designs, manufactures and markets a range of personal computers, mobile communication and media devices, and portable digital media players. Its products and services include the MAC line of desktop and portable computers, the MAC OS X operating system, IPHONE mobile telecommunication devices, IPAD tablet computing devices, the IPOD line of portable digital music and video players, the APPLE TV digital media device, a portfolio of consumer and professional software, including the popular ITUNES software, along with a variety of accessory, service and support offerings. Apple-owned and third-party digital content are provided through the Complainant’s ITUNES STORE, APP STORE, and IBOOKSTORE services. The Complainant has also opened over 300 “Apple Store” branded bricks-and-mortar retail stores worldwide.
The APPLE brand is one of the best-known brands in the world. The Complainant owns numerous trademark registrations for APPLE and APPLE STORE, including United States federally registered marks APPLE, No. 1078312, registered on November 29, 1977 and APPLE STORE, No. 2683410, registered on February 4, 2003. The Complainant is also the registrant of the domain names <apple.com>, <applecomputer.com> and <applestore.com>, among others. In the month of December, 2011, the Complainant’s websites received over 83 million visitors.
The Domain Name was registered by the Respondent on March 25, 2009. It resolves to a click through revenue search-engine page containing links to computer-related websites, some of which offer products and services from the Complainant’s competitors.
The Complainant believes the name of the Respondent is an alias used by an individual or entity to register the Domain Name. The Respondent uses an address in Warsaw, Poland for the Domain Name but appears to have an address in Austin, Texas, used in connection with another domain name it has registered.
The Complainant says the Domain Name is confusingly similar and nearly identical to the Complainant’s famous APPLE and APPLE STORE marks as well as its enormously popular ”www.applestore.com” website and that the Respondent has no rights or legitimate interests in the Domain Name, which was registered and is being used in bad faith.
As to legitimacy, the Complainant says there is no relationship between the parties giving rise to any licence, permission, or other right by which the Respondent could own or use any domain name incorporating the Complainant’s marks and name. The Domain Name is not a name or nickname of the Respondent, who is neither using the Domain Name in connection with a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the Domain Name. Rather, the Respondent has registered and is using the Domain Name solely for commercial gain. It appears undeniable that the Respondent registered the Domain Name in order to use the Complainant’s marks and name to profit from the web traffic generated by consumers seeking to purchase the Complainant’s products. See, e.g., Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847 (“Use which intentionally trades on the fame of another cannot constitute a bona fide offering of goods and services”).
As to bad faith, the Complainant says the Domain Name incorporates the famous APPLE and APPLE STORE marks almost in their entirety and was acquired long after they became well-known. Further, the Domain Name is nearly identical to the Complainant’s <applestore.com> domain name with the deletion of only one letter. This misspelling alone is sufficient to prove bad faith because the Respondent has used these names intentionally to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. See Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775.
Given the commercial content of the Respondent’s website, there can be no doubt that the Respondent is attempting to profit from the web traffic generated by the Complainant’s marks and name, and is thus acting in bad faith.
The Respondent is typo-squatting on the world-famous APPLE and APPLE STORE marks and enormously popular “www.applestore.com” website. Such registration and use of the Domain Name is in and of itself a form of opportunistic bad faith. See, e.g., Scania CV AB (Publ) v. Unaci, Inc., WIPO Case No. D2005-0585; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163.
The Respondent did not reply to the Complainant’s contentions.
To qualify for cancellation or transfer of the Domain Name, the Complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman, WIPO Case No. D2000-1080 and AltaVista Company v. Grandtotal Finances Limited et. al., WIPO Case No. D2000-0848.
The Domain Name is clearly confusingly similar to the Complainant’s famous APPLE mark, the word ‘store’ doing nothing to detract from the distinctiveness of that mark. The Domain Name is also virtually identical to the Complainant’s registered trademark APPLE STORE, the absence of the letter “p” being insufficient to distinguish the Domain Name from that trademark. The generic Top Level Domain (gTLD) “.com” is inconsequential: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.
The Panel finds that the Complainant has established this element of its case.
The Panel finds that the APPLE and APPLE STORE marks are distinctive and famous. The Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in the Domain Name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that he does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
The Panel finds that the Complainant has established this element of its case.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the Domain Name in bad faith for purposes of paragraph 4(a)(iii) of the Policy. The Complainant relies, inter alia, on paragraph 4(b)(iv):
“(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent’s website or location or of a product or service on its website or location”.
The fame of the Complainant’s marks, the use to which the Respondent has put the Domain Name and the failure of the Respondent to contest any of the Complainant’s assertions establish to the satisfaction of the Panel both that the Respondent must have had the Complainant’s marks in mind when he registered the Domain Name and that the Respondent is using the Domain Name for the purpose described in the Policy, paragraph 4(b)(iv). Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith.
The Panel finds that the Complainant has established this element of its case.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <aplestore.com> be transferred to the Complainant.
Alan L. Limbury
Sole Panelist
Dated: May 30, 2012