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When Qwerty Keyboard is Evidence of Typosquatting; Omission of Letters that Spell Foreign Words, Not Typosquatting

UDRP’s anti-cybersquatting proscriptions focus on unfair business practices and deception. They are not intended to suppress competition or restrain commerce. The “behavior of innocent or good faith domain name registrants is not to be considered abusive.” WIPO Final Report paragraph 172. Several recent decisions illustrate examples of bad faith and innocent or good faith registration of domain names. Typosquatting is the neon light of cybersquatting because displacement or omission of letters calls attention to itself. It is generally easy to spot and in most instances so obvious that respondents do not bother to appear and defend. In Google Inc. v. Domain Explorer, FA1205001444621 (Nat. Arb. Forum June 15, 2012) (GOOGLE and <gokgle.com> and <gkogle.com>), “k” and “o” are neighbors, one below the other on the Qwerty keyboard. Where the “only apparent purpose would be to trade on mistakes by users seeking Complainant’s web site” the registration is abusive. Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO October 16, 2000).

Inference is appropriate in querty cases. In Melborne IT the Panel held that “one struggles without success to think of any legitimate purpose for registering a domain name based on typographically erroneous variation of Complainant’s well-known mark.” In Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO January 21, 2003) (<minorleauge baseball.com>) the Panel held that de minimis changes to trademark terms such as transposing letters is “inherently parasitic and by itself evidence of bad faith.” This came after the same respondent had argued in two earlier cases that he had as much right to register typosquatted domain names “as the person who owns the correct spelling of domain name.” That contention was given short shrift. De minimis changes “immediately raise[] suspicions and call[]or an explanation.” CareerBuilderLC v, L. Azra Kha, D2003-0493 (WIPO August 5, 2003).

There are cases, however, in which an appearance of typosquatting is just an appearance. Target Brands, Inc. v. Quinv S.A. / Korchia Thibault, FA1205001442068 (Nat. Arb. Forum June 12, 2012) (TARGET and <taget.com>). It certainly appears as though the Respondent has simply omitted the letter “r.” However, the Respondent appears to be from a non-English speaking community. It argued that “taget” has several meanings, “most of which are associated with ‘touch’ (Latin) and in Swedish, the word means ‘touched’, ‘moved’ or ‘affected’.” It further claimed that “Google translates the term to ‘time,’ also in Swedish and in Danish the word has a variety of meanings including foggy (as in meteorology), taken, and when combined as a phrase to form ‘strengt taget’ translates to ‘strictly speaking’.”

Target Brands argued that the domain name was a misspelling registered to target its trademark. While this may likely be the case, it does not, cannot go without proving. Failing to understand this elemental requirement of UDRP leads only to being chided even where Respondent fails “to produce any actual evidence refuting [its] allegation[s]”:

Nevertheless, Complainant has failed to provide sufficient evidence linking the alleged use of the Domain Name to specific pages on its own website…. As far as the Panel is able to ascertain, nothing on Respondent’s current site appears to relate to Complainant’s goods or services. Thus, even if Complainant is correct in its assertion concerning the alleged chain of links, it fails to provide sufficient evidence that all these links were under the control of Respondent.

The absence of an “r” could indicate a typographical error, but not if the intended foreign word is properly spelled without it, which (absent proof to the contrary) is apparently the case with “taget.” The proof the Panel was looking for to establish lack of rights or legitimate interests Complainant was unable to marshal and that sunk it bad faith claim.

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