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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
DaimlerChrysler Corporation and DaimlerChrysler Services North America LLC v. Peter Carrington and Party Night Inc.
Case No. D2002-0756
1. The Parties
Complainants are DaimlerChrysler Corporation (“DaimlerChrysler”) a Delaware corporation with its principal place of business in Auburn Hills, Michigan; and DaimlerChrysler Services North America LLC (“DaimlerChrysler Services”) of Southfield, Michigan. Complainants are represented in this administrative proceeding by Judith A. Powell, of Kilpatrick Stockton LLP, Suite 2800, 1100 Peachtree Street, Atlanta, Georgia 30309-4530, USA.
Respondents are the Registrants, Peter Carrington and Party Night Inc., Jan Luykenstraat 58, Amsterdam, Netherlands 1071 CS.
2. Domain Name and Registrar
The Domain Name subject to this dispute is: <chyrslerfinancial.com>.
The Registrar is Key-Systems Gmbh d/b/a/ domaindiscount24.com, Key-Systems Gmbh, Saarpfalz-Park Geb. 7, D-66450 Bexbach, Germany.
3. Procedural History
3.1. The Complaint in respect of the disputed Domain Name was received by the World Intellectual Property Organization Arbitration and Mediation Center (the Center) by email on August 12, 2002, and in hard copy on August 19, 2002. Complainants state that a copy of the Complaint together with the prescribed cover sheet was sent to the Respondents in accordance with the requirements of Rule 2 (b) of the Rules for Uniform Domain Name Dispute Resolution Policy.
3.2. On August 16, 2002, verification was received by the Center from the Registrar, Key-Systems, that the disputed Domain Name <chyrslerfinancial.com> is registered in the name and address of Peter Carrington and Party Night Inc., Jan Luykenstraat 58, Amsterdam, Netherlands 1071 CS. The Administrative Contact, Technical Contact and Billing Contact are the same as the Registrants. The Uniform Domain Name Dispute Resolution Policy applies.
3.3. The Complaint satisfies the formal requirements of the Uniform Domain Name Dispute Resolution Policy (Policy) and the Rules for Uniform Domain Name Dispute Resolution Policy (Rules) approved by the Internet Corporation for Assigned Names and Numbers (ICANN), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules).
3.4. On September 6, 2002, formal Notification of Complaint and Commencement of Administrative Proceeding was sent by the Center by post/courier (with enclosures) to the Respondents at their address of registration. Email copies without enclosures were sent to Respondents, copied to Complainants, ICANN and the Registrar.
3.5. No formal Response was received from Respondents by the due date of September 26, 2002. Notification of Respondent Default was sent to the Parties on September 30, 2002.
3.6. On October 15, 2002, Dr. Clive Trotman, having provided the Center with a Statement of Acceptance and Declaration of Impartiality, was appointed as a single member Administrative Panel and notification was sent by email to Complainants, Respondents and the Administrative Panel. The Case File was sent to the Administrative Panel by courier.
4. Factual Background
4.1. Chrysler and DaimlerChrysler have for many years been well known brands of motor vehicles. According to Complainants, the mark CHRYSLER is currently owned by the Complainant company DaimlerChrysler Corporation and has been used at least since 1924 by the company and its predecessors.
4.2. DaimlerChrysler Services North America LLC is an affiliate of DaimlerChrysler Corporation engaged in the financing of Chrysler vehicle sales.
4.3. Complainants own trademarks or service marks (hereafter marks) variously registered as CHRYSLER. Complainants have used and promoted the mark CHRYSLER FINANCIAL continuously at least since 1967 in connection with vehicle financing services. Federal registration application for the CHRYSLER FINANCIAL mark was filed on May 2, 2002, with first use in commerce stated to be July 1967.
4.4. The disputed Domain Name <chyrslerfinancial.com> was registered on April 29, 2002. No other significant facts are available about the Respondent's activities.
5. Parties’ Contentions
A. Contentions of Complainants
5.1. The contentions of Complainants include (paragraphs 5.2-5.7 below) that:
5.2. The dispute is properly within the scope of the Policy. The registration agreement, pursuant to which the Domain Name being the subject of this Complaint was registered, incorporates the Policy by reference.
5.3. The disputed Domain Name <chyrslerfinancial.com> is confusingly similar to the mark CHRYSLER FINANCIAL in which Complainants have rights, the only difference being a mis-spelling of the authentic mark whereby the letters “-RY-” are transposed to become “-YR-”.
5.4. Respondents do not have any rights or legitimate interests in the disputed Domain Name. Complainants have used the mark CHRYSLER for 78 years and the mark CHRYSLER FINANCIAL for 35 years, both prior to Respondents' registration of the disputed Domain Name. Respondents have not been known by the disputed Domain Name and are not making any legitimate noncommercial use of it.
5.5. Respondent’s registration and use of the Domain Name is in bad faith in the terms of the Policy. The Complainants' marks are so well known and promoted that Respondents must have been aware of them. DaimlerChrysler sold at least 1.8 million vehicles last year and Chrysler Financial financed over 600,000 vehicles. Complainants own and operate the authentic website <chryslerfinancial.com> which averages over 400,000 unique visitors per month and other websites including <chrysler.com> and <chryslercars.com>.
5.6. Respondents have attempted to divert users to their website by confusion by relying on a proportion of users making a typographical mistake. Respondents divert users to an adult website with links to further pornographic sites for commercial gain and with the effect of tarnishing Complainants' good name. Such confusion has occurred and has resulted in complaints to Complainants from their customers.
5.7. The remedy requested by Complainants is for the disputed Domain Name <chyrslerfinancial.com> to be transferred to Complainants.
B. Contentions of Respondents
5.8. No Response has been received and Respondents have not contested the allegations of the Complainants.
6. Discussion and Findings
Jurisdiction of Administrative Panel
6.1. Paragraph 4(a) of the Policy states:
“You are required to submit to a mandatory administrative proceeding in the event that a third party (a “complainant”) asserts to the applicable Provider, in compliance with the Rules of Procedure, that:
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.”
6.2. Complainants have made the relevant assertions as above. This dispute is properly within the scope of the Policy and the Administrative Panel has jurisdiction to decide the dispute.
Whether the Domain Name is Identical or Confusingly Similar to a Mark
6.3. The disputed Domain Name <chyrslerfinancial.com> as registered by Respondents is a mis-spelling of Complainants' marks CHRYSLER and CHRYSLER FINANCIAL and is a mis-spelling of Complainants' authentic Domain Name <chryslerfinancial.com>. It is well established in precedent that confusing similarity is normally found where a Domain Name corresponds to a typographical error in the spelling of another mark. The Panel finds the disputed Domain Name to be confusingly similar to Complainants' marks and the Panel finds for Complainants in terms of Paragraph 4(a)(i) of the Policy.
Whether Respondents Have Rights or Legitimate Interests in Respect of the Domain Name
6.4. Complainants must prove that Respondents have no rights or legitimate interests in respect of the disputed Domain Name. Complainants state that they or their predecessors have used the mark CHRYSLER continuously for 78 years and the mark CHRYSLER FINANCIAL for 35 years, prior to the registration date of the disputed Domain Name. The marks have been heavily advertised and are well known. Complainants have never licensed the marks to Respondents nor entered into any relationship with them. A prima facie case is established that Respondents have no rights or legitimate interests in the Domain Name and it is open to Respondents to refute this.
6.5. No Response has been received. Specifically there is no suggestion in terms of Paragraph 4(c) of the Policy that Respondents have used the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or been commonly known by the Domain Name; or made a legitimate noncommercial or fair use of the Domain Name. The Panel finds for Complainants under Paragraph 4(a)(ii) of the Policy.
Whether the Domain Name Has Been Registered and Is Being Used in Bad Faith
6.6. Paragraph 4(a)(iii) of the Policy requires Complainants to prove that the Domain Name has been registered and is being used in bad faith. Paragraph 4(b) lists four circumstances, without limitation, that shall be evidence of the registration and use of a Domain Name in bad faith. Of these, Paragraph 4(b)(iv) provides for a finding of bad faith where:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
6.7. The disputed Domain Name resolves to a website having nothing to do with Complainants but which is explicitly “adult” in nature with a prominent proclamation to that effect. The function of this website is to refer visitors through a range of links to pornographic websites that charge for membership or viewing. Having regard to all the evidence there can be no reasonable explanation for Respondents' activities other than the business of benefiting commercially from the referral of visitors through the website of the disputed Domain Name. Unsuspecting visitors are attracted in the first place by entrapment as a result of their typing “chyrsler” accidentally instead of “chrysler”.
6.8. Respondents' ploy is known as “typo-piracy” and has been well recognized in precedent cases (e.g., Playboy Enterprises International Inc. v. SAND WebNames - For Sale, WIPO Case No. D2001-0094; Travelprice Com v. Pissin Chicken Inc., WIPO Case No. D2002-0129; Novus Credit Services Inc. v. Personal, WIPO Case No. D2000-1158; World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, WIPO Case No. D2000-0256; InfoSpace.com, Inc. v. Registrar Administrator Lew Blanck, WIPO Case No. D2000-0069). The contents of Respondents' website and links are in any case of no consequence since it is the act of diversion by confusion that is evidence of bad faith (Bass Hotels & Resorts, Inc. v. Mike Rodgerall, WIPO Case No. D2000-0568). The Panel finds bad faith proven clearly in the terms of Paragraph 4(b)(iv) of the Policy.
6.9. In summary, as concluded in 6.3 above the disputed Domain Name is confusingly similar to Complainants' marks and Complainants succeed under Paragraph 4(a)(i) of the Policy. As concluded in 6.5 above, Respondents have no rights or legitimate interests in the Domain Name and Complainants succeed under Paragraph 4(a)(ii) of the Policy. As concluded in 6.8 above, Respondents have registered and are using the Domain Name in bad faith and Complainants succeed under Paragraph 4(a)(iii) of the Policy. The Complainants have proven all three elements required by Paragraph 4(a) of the Uniform Policy and the Administrative Panel decides for the Complainants.
The Decision of the Administrative Panel is that the disputed Domain Name <chyrslerfinancial.com> is confusingly similar to the marks CHRYSLER and CHRYSLER FINANCIAL in which Complainants have rights; that Respondents have no rights or legitimate interests in the disputed Domain Name; and that Respondents have registered and are using the disputed Domain Name in bad faith. The Domain Name <chyrslerfinancial.com> shall be transferred to the Complainants.
Dr. Clive N. A. Trotman
Dated: October 29, 2002