DECISION

LTD Commodities LLC v. Party Night, Inc. a/k/a Peter Carrington

Claim Number:  FA0306000165155

PARTIES

Complainant is LTD Commodities LLC, Bannockburn, IL (“Complainant”) represented by Irwin C. Alter, of Alter and Weiss.  Respondent is Party Night, Inc. a/k/a Peter Carrington, Amsterdam, Netherlands (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <ltdcommadities.com>, <ltdcommmodities.com> and <ltdcommodaties.com>, registered with Key-Systems Gmbh.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

Tyrus R. Atkinson, Jr., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 26, 2003; the Forum received a hard copy of the Complaint on June 30, 2003.

On July 4, 2003, Key-Systems Gmbh confirmed by e-mail to the Forum that the domain names <ltdcommadities.com>, <ltdcommmodities.com> and <ltdcommodaties.com> are registered with Key-Systems Gmbh and that Respondent is the current registrant of the names. Key-Systems Gmbh has verified that Respondent is bound by the Key-Systems Gmbh registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On July 8, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 28, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@ltdcommadities.com, postmaster@ltdcommmodities.com, and postmaster@ltdcommodaties.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On July 31, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names are confusingly similar to Complainant’s LTD COMMODITIES mark.

2. Respondent does not have any rights or legitimate interests in the <ltdcommadities.com>, <ltdcommmodities.com> and <ltdcommodaties.com> domain names.

3. Respondent registered and used the <ltdcommadities.com>, <ltdcommmodities.com> and <ltdcommodaties.com> domain names in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Since 1963, Complainant, formally known as LTD Commodities, Inc., has been in the field of catalog mail order distributorships for general merchandise such as toys, housewares, and gifts.  Complainant registered the <ltdcommodities.com> domain name and has operated it in conjunction with its business since May 31, 1996.  Complainant’s LTD COMMODITIES mark has been used in commerce since 1963 and was registered with the U.S. Patent and Trademark Office (“USPTO”) on November 28, 2000 (Reg. No. 2409188).  Also, Complainant has several pending service marks for LTD COMMODITIES LLC with the USPTO (Serial Nos. 78194891, 78194821 and 78194903).

Respondent registered the <ltdcommadities.com>, <ltdcommmodities.com> and <ltdcommodaties.com> domain names between July 23 and August 3, 2002.  Respondent’s disputed domain names redirect Internet users to an adult oriented website.  During the redirection, Internet users are “mousetrapped” into viewing a series of pop-up advertisements. 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

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

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

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

Identical and/or Confusingly Similar

Complainant has established rights in the LTD COMMODITIES mark through use of the mark in commerce and by registering it with the USPTO. 

Respondent’s <ltdcommadities.com>, <ltdcommmodities.com> and <ltdcommodaties.com> domain names constitute confusingly similar domain names pursuant to Policy ¶ 4(a)(i) because they are mere misspellings of Complainant’s mark.  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to Complainant’s HEWLETT-PACKARD mark).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Due to Respondent’s failure to contest the allegations of the Complaint, the Panel presumes that Respondent lacks rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).  See Canadian Imperial Bank of Commerce v. D3M Virtual Reality, Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”). 

Furthermore, the WHOIS information for the disputed domain names lists Respondent, Peter Carrington a/k/a Party Night, Inc., as the registrant; however, it fails to establish Respondent as one commonly known by any of the disputed domain names.  Also, Respondent is not authorized or licensed to register or use domain names incorporating Complainant’s mark and is not affiliated with Complainant.  Therefore, pursuant to Policy ¶ 4(a)(ii), Respondent has no rights or legitimate interests in the disputed domain names.  See Tercent, Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

In addition, Respondent is using the disputed domain names to redirect Internet users to an adult oriented website.  Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Isleworth Land Co. v. Lost In Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (finding that Respondent’s use of its domain name to link unsuspecting Internet traffic to an adult orientated website, containing images of scantily clad women in provocative poses, did not constitute a connection with a bona fide offering of goods or services or a noncommercial or fair use); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that infringing on another's well-known mark to provide a link to a pornographic site is not a legitimate or fair use). 

Moreover, Respondent has engaged in the practice of “typosquatting.”  Respondent intentionally registered the disputed domain names, which are misspellings of Complainant’s mark, with the purpose of redirecting Internet users who attempt to access Complainant’s website but misspell Complainant’s domain name.  Respondent’s “typosquatting” is evidence that Respondent lacks rights or legitimate interests in the disputed domain names.  See Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of Complainant's mark); see also Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

The Panel infers that Respondent either knew or should have known of Complainant’s rights in the LTD COMMODITIES mark because Complainant’s mark has been registered on the Principal Register of the USPTO and has been used in commerce since as early as 1963. Respondent’s registration of the disputed domain names despite its knowledge of Complainant’s rights is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii).  See Victoria’s Cyber Secret Ltd. P’ship v. V Secret Catalogue, Inc., 161 F.Supp.2d 1339, 1349 (S.D.Fla. 2001) (noting that “a Principal Register registration [of a trademark or service mark] is constructive notice of a claim of ownership so as to eliminate any defense of good faith adoption” pursuant to 15 U.S.C. § 1072); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).

In addition, Respondent’s disputed domain names tarnish Complainant’s mark because they are confusingly similar to the LTD COMMODITIES mark and redirect Internet users to an adult oriented website.  Respondent’s use of the disputed domain names constitutes bad faith pursuant to Policy ¶ 4(b)(iv).  See Wells Fargo & Co. v. Party Night Inc. a/k/a Peter Carrington, FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that Respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (stating that “whatever the motivation of Respondent, the diversion of the domain name to a pornographic site is itself certainly consistent with the finding that the Domain Name was registered and is being used in bad faith”). 

Finally, Respondent has engaged in the practice of “typosquatting.”   Respondent’s conduct is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting, however, is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Sports Auth. Mich., Inc. v. Elias Skander d/b/a Web Registration Service, FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the “typosquatted” domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” evidence of bad faith registration and use).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <ltdcommadities.com>, <ltdcommmodities.com> and <ltdcommodaties.com> domain names be TRANSFERRED from Respondent to Complainant.

Tyrus R. Atkinson, Jr., Panelist

Dated:  August 14, 2003

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