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Recent Case Notes & Commentary

Recent Case on Misspelling

(or should it be misspelt?) the trademark when composing the spelling of the domain name, a good one for you is Lemco, Inc. v. Transure Enterprise Lt, (WIPO Case No. D2010-0300) where the panel said:

“The Domain Names are all misspellings of the Complainant’s NEW YORK & COMPANY mark, and incorporate the word “and” rather than the ampersand logogram. The substitution of “&” for “and” is legally insignificant and does not serve to distinguish the Domain Names in any way.

The misspellings are, in the case of <>, the substitution of “m” for “n” at the beginning of the Domain Name; with respect to <>, the removal of the letter “y” from the beginning of the word “york” in the Domain Name; and in relation to <>, the common misspelling of the word ‘company’.

None of the above misspellings serve to distinguish the Domain Names from the Complainant’s trademark. Rather, all three Domain Names constitute common and foreseeable misspellings of the Complainant’s trademarks (as well as the Complainant’s own domain name). It is well-established that domain names incorporating a slightly misspelled version of a trademark may be held to be confusingly similar to such trademark. See, for example, Wachovia Corporation v. Peter Carrington, (WIPO Case No. D2002-0775) and Swarovski A.G v. Modern Empire Internet Ltd, (WIPO Case No. D2006-0148).

The Panel finds that the Domain Names are confusingly similar to the mark NEW YORK & COMPANY in which the Complainant has rights. Element 4(a)(i) of the Policy is made out.”


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