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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

The Price Company v. Price Club, also known as Tsung-Pei Chang

Case No. D2000-0664

 

1. The Parties

Complainant is The Price Company, a California corporation located in Issaquah, Washington.

Respondent is Price Club, also known as Tsung-Pei Chang, apparently located in Flushing, New York.

 

2. The Domain Name(s) and Registrar(s)

The disputed domain names are:

<priceclub.com>
<priceclub.net>
<priceclub2000.com>

The registrant is Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, Virginia 20170 USA.

 

3. Procedural History

The Complaint was filed on June 26, 2000.

Notification of the Complaint was sent to respondent on July 11, 2000. Default Notification was sent to respondent on August 14, 2000.

The case was assigned to Mark V.B. Partridge for decision on August 23, 2000.

It appears from the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, I shall issue a Decision based on the Complaint, the Policy, the Uniform Rules, the WIPO Supplemental Rules, and without the benefit of any Response from respondent.

 

4. Factual Background

Complainant is engaged in the operation of PRICE CLUB warehouse stores. The first store was opened in 1976 and the PRICE CLUB mark is the subject of various federal registrations dating back to 1982. Complainant’s Price Club stores have many billions of dollars in annual sales and million of members. Based on Complainant’s long and extensive use, the PRICE CLUB mark has become famous in the United States.

In 1997, Respondent registered the domain names <priceclub.com> and <priceclub.net>. With the birth of the new millennium, respondent registered <priceclub2000.com>.

The web pages at <priceclub.com> and <priceclub.net> state that the site is "under construction." The <priceclub.com> sites also states "register for your FREE membership. Coming soon."

Early this year, a consumer came to complainant’s Scottsdale, Arizona store with a printout of respondent’s <priceclub.com> site and requested free membership as promised by respondent’s site.

 

5. Parties’ Contentions

Complainant contends that respondent’s domain names are identical or confusingly similar to its well-known domain names; that respondent has no legitimate interest in the domain names; and that the domain names were registered and used in bad faith.

Respondent has not contested the complainant’s allegations.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:

(1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,

(2) that the respondent has no legitimate interests in respect of the domain name; and,

(3) the domain name has been registered and used in bad faith.

The domain names <priceclub.com> and <priceclub.net> are identical to complainant’s well-known mark.. The domain name <priceclub2000.com> is confusingly similar to complainant’s mark. See ISL Marketing AG et al v. J.Y. Chung et al, ICANN Case No. D2000-0034 (finding worldcup2002, worldcup2006 and worldcup2010 to be confusingly similar to the WORLD CUP mark).

Complainant claims that respondent has no legitimate interest in the domain names. Respondent has not denied that allegation. There is no indication that respondent is making noncommercial or fair use of the domain names. Indeed, given the fame of the complainant’s mark, I see no basis on which respondent could have a bona fide reason for registration of three domain names that are essentially identical to complainant’s well-known mark.

Complainant notes that a company, called "Priceclub.com, Inc.", located at an address other than respondent’s, was incorporated in New York on November 30, 1998. No connection with respondent has been made, and thus there is no basis to find that respondent was known by the "priceclub.com" name prior to this dispute. Even if that company were related to respondent, incorporation alone is not necessarily sufficient to indicate a legitimate interest, especially if it appears the name was incorporated in bad faith.

Respondent also has not denied complainant’s allegation of bad faith registration and use.

In the Commencement Notification, respondent was informed that Paragraph 14 of the Rules for Uniform Domain Name Dispute Resolution Policy provides that the Panel "may draw such inferences from your default as it considers appropriate."

The only evidence available suggests that the disputed domain names were registered and used in bad faith. Complainant’s mark is very well-known and there is no conceivable good faith basis for registering three domain names based on that mark.. Complainant’s efforts to contact respondent about this matter have been unsuccessful, either because respondent has provided false contact information or because respondent lacks any justification for its use. Under the circumstances, it appears more probable than not that respondent registered the domain names for the purpose of selling them to complainant for a profit or for using them to attract users to its site for commercial gain based on confusion with complainant’s well-known mark.

While <priceclub.com> and <priceclub.net> have been used for web pages indicating that the sites are under construction, the <priceclub2000.com> domain name has not yet been used. The lack of use, however, should not necessarily preclude a finding of bad faith use and registration. As is the case in civil actions generally, the complainant’s burden of proof is satisfied when the available facts indicate that it is more likely than not that the respondent intended to register and use the domain names in bad faith. Otherwise, cybersquatters could always avoid relief by merely remaining passive. Here, coupled with the circumstances noted above, the selection of three domain names that are virtually identical to complainant’s famous mark demonstrates that these were abusive registrations contrary to the Policy.

 

7. Decision

For these reasons, I conclude that the domain names registered by respondent are identical or confusingly similar to the mark in which the complainant has rights, and that the respondent has no rights or legitimate interests in respect of the domain names, and that the respondent’s domain names were registered and used in bad faith. Accordingly the domain names <priceclub.com>, <priceclub.net> and <priceclub2000.com> should be transferred to the complainant.

 


 

Mark Partridge
Presiding Panelist

Dated: August 25, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0664.html

 

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