DaimlerChrysler Corporation; DaimlerChrysler Services North America LLC v. Party Night Inc.; Peter Carrington

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.

7. Decision

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

Sole Panelist

Dated: October 29, 2002

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