The Complainant is Walter E. Smithe Furniture, Inc., Itasca, Illinois, United States of America, represented by Sidley & Austin, United States of America.
The Respondent is Nevis Domains, Charlestown, Nevis, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <walteresmith.com> is registered with Moniker
Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 8, 2006. On May 9, 2006, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On May 17, 2006, Moniker Online Services, LLC transmitted by email to the Center its verification response. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on May 22, 2006. 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 May 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 19, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 24, 2006.
The Center appointed Eduardo Machado as the sole panelist
in this matter on June 30, 2006. 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
Complainant Walter E. Smithe is a custom furniture retailer that has been doing business in the Chicago, Illinois area since 1945. The company was founded by Walter E. Smithe, and remains a family-owned and operated company.
Complainant is the registered owner of several trademarks and service marks utilizing the Walter E. Smithe name, including trademark and service mark “WALTER E. SMITHE”, Registration No. 2,313,947.
Complainant is the registrant of the domain names <smithe.com> and <waltersmithe.com>, both of which resolve to Walter E. Smithe’s primary website, “www.smithe.com”.
A previous panel in Walter E. Smithe Furniture, Inc. v. Registrant (187640),
WIPO Case No. D2004-0937, recognized these
rights when it ordered the transfer of the domain name <walteresmithe.com>
to the Complainant.
When a user enters the disputed domain name <walteresmith.com>,
it is directed to website “www.walteresmith.com”, which does not
appear to sell furniture directly, but has several links associated with furniture.
5. Parties’ Contentions
A. Complainant
Complainant argues that the disputed domain name is identical to Complainant’s “Walter E. Smithe” name and mark, but for the missing final “e”, and it is pronounced exactly the same. Thus, anyone unfamiliar with the spelling of Complainant’s last name would naturally default to the more common spelling of “Smith”.
Complainant argues that Respondent merely mimicked the name in an obvious attempt to exploit the consumer confusion that results from Respondent’s use of that name to link to various furniture-related websites and that Respondent’s registration and use of the domain name <walteresmith.com> is certain to confuse consumers looking for information related to custom furniture products and services provided by Complainant.
Complainant argues that the fact that Respondent dropped the silent “e” from the end of “Smithe” does nothing to reduce consumer confusion.
Complainant argues that Respondent has absolutely no rights or legitimate interest in the contested domain name. Although Respondent has concealed his or her identity, upon information and belief, Respondent is not Walter E. Smithe’s licensee in any respect, nor is Respondent authorized to use Complainant’s marks.
Complainant argues that Respondent does not own any registered or common law marks containing the term “Walter E. Smith” or any derivation thereof. Also, Respondent is not making legitimate noncommercial or fair use of the contested domain name, as is immediately clear upon inspection of the website.
Complainant argues that Respondent’s only demonstrated use of the disputed domain name is to direct Internet traffic to websites in direct competition with Complainant in a transparent attempt to prey on the confusion of individuals seeking information about Complainant’s custom furniture products and services and that this is evidence of bad faith.
Finally, Complainant argues that Respondent’s failure to provide accurate and complete Whois information provides additional evidence of bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
Although Respondent did not reply, it is proper for the Panel to examine Complainant’s contentions having regard to both the Policy and the Rules.
A. Identical or Confusingly Similar
Complainant is correct in claiming that the domain name <walteresmith.com> is confusingly similar to Complainant’s trademarks, including WALTER E. SMITHE, which are registered marks in the United States.
The deletion of an “e” from the end of the word “smithe” is not sufficient to distinguish a mark from its adopter.
It is clear that this will in all likelihood cause the public to think that the domain name <walteresmith.com> is owned by the Complainant.
The Panel therefore finds that the disputed domain name is confusingly similar to Complainant’s “WALTER E. SMITHE” trademark.
B. Rights or Legitimate Interests
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name at issue, as enumerated in paragraph 4(c) of the Policy.
Complainant also alleges that Respondent does not own any registered or common law marks containing the term “Walter E. Smith” nor is it making legitimate noncommercial or fair use of the contested domain name.
As the Respondent has not put forward any evidence to rebut the Complainant’s prima facie showing, the Panel finds that the second element of the Policy has been established.
C. Registered and Used in Bad Faith
The Panel notes the following particular circumstances of this case:
(i) Complainant’s trademark has a strong reputation and is widely known in the United States, especially in the furniture business;
(ii) Respondent has provided no evidence whatsoever of any good faith use by it of the disputed domain name, and has not participated in this proceeding even though properly notified thereof;
(iii) the disputed domain name at present resolves to a website with several links to several furniture retailers, who are competitors to the Complainant, which demonstrates bad-faith use and registration under paragraph 4(b)(iv) of the Policy because Respondent creates a likelihood of confusion, including initial interest confusion, as to the source, sponsorship, affiliation, or endorsement of its website.
In light of these circumstances, the Panel makes the reasonable inference that Respondent was aware of Complainant and its trademark and that the Respondent registered and used the disputed domain name within the meaning of paragraph 4(b)(iv) of the Policy.
The Panel finds accordingly that the third element of the Policy has been met.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <walteresmith.com>, be transferred to the Complainant.
Eduardo Machado
Sole Panelist
Dated: July 14, 2006
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