In a straightforward, old-fashioned typosquatting dispute, Costco Wholesale Membership Inc., Costco Wholesale Corporation v. Vladimir Snezko, WIPO Case No. D2017-2405 (Andrea Jaeger-Lenz, February 2, 2018), the Panel ordered transfer of the domain costoco.com to the wholesale company Costco. Respondent, which had held the disputed domain since 2000, did not respond to the UDRP complaint.
Starting with the first of the three factors necessary for a complainant to prevail in a UDRP dispute, namely, whether the disputed domain is identical or confusingly similar to the complainant's trademark, the Panel noted that "[a] domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark." The Panel found that that minor differences between the disputed domain and Complainant's COSTCO trademark did not obviate the visual and phonetic similarities between them, and thus found the first prong of a successful UDRP claim to be satisfied.
As to whether Respondent has rights or legitimate interests in respect of the disputed domain, the Panel noted that "it is sufficient for the Complainant to make a prima facie showing that the Respondent has no rights or legitimate interest in the disputed domain name in order to place the burden of production on the Respondent." As the Panel then found that there was "no evidence" that Respondent (1) "before any notice of the dispute, used or prepared to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services," (2) "has ever been commonly known by the disputed domain name or has acquired trademark rights," or (3) has made and is making a legitimate noncommercial or fair use of the disputed domain name or used the domain in connection with a bona fide offering of goods and services, the Panel found that Complainant had made such prima facie case. "Hence, the burden of production is on the Respondent. In such case, the Respondent must, by substantial evidence, demonstrate its rights or legitimate interests in the disputed domain name in order to refute the prima facie case. The Respondent has made no such showing, since there has not been any response to the Complainant's contentions."
As to the final element of a UDRP complaint, namely, whether Respondent registered and has used the disputed domain in bad faith, the Panel summarily concluded that Respondent must have been aware of Complainant at the time of registering the disputed domain, and thus registered the domain in bad faith. As to use in bad faith, the Panel noted that "UDRP panels will normally find that employing a misspelling in the way that Internet users are misled to another website by typing mistakes signals an intention on the part of the Respondent to confuse users seeking or expecting the Complainant." Here, "[t]he disputed domain name <costoco.com> leads to the website of the Complainant's biggest competitor [Sam's Club] although Internet users expect to find the Complainant's website." Based on the foregoing, "[s]ince the Respondent does not have any rights or legitimate interests in the use of the disputed domain name, there is no legitimate, good faith use of the disputed domain name possible by the Respondent."
And thus, the Panel ordered transfer of the domain.