WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Toyota Motor Credit Corporation v. Party Night Inc.
Case No. D2003-0555
1. The Parties
The Complainant is Toyota Motor Credit Corporation, Elise Ross, Esq., Legal Department, of Torrance, California, United States of America, represented by Shaw Pittman, United States of America.
The Respondent is Party Night Inc., C/O Peter Carrington, of Amsterdam, Netherlands.
2. The Domain Name and Registrar
The disputed domain name is registered with Key--Systems GmbH dba .
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 15, 2003. On July 16, 2003, the Center transmitted by email to Key-Systems GmbH dba a request for registrar verification in connection with the domain name at issue. On the same date Key-Systems GmbH dba transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 23, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was August 12, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on August 14, 2003.
The Center appointed Knud Wallberg as the Sole Panelist in this matter on August 26, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant, Toyota Motor Credit Corporation, is a wholly-owned subsidiary of Toyota Financial Services Americas Corporation, a U.S. corporation, which again is a subsidiary of Toyota Motor Corporation, a Japanese corporation.
The Complainant is a provider of financial services to authorized Toyota dealers and their customers in the US.
The Complainant is licensed to use the marks TOYOTA and TOYOTA FINANCIAL SERVICES in the United States for financing and insurance services.
The Complainant�s corporate parent is the holder of several registered trademarks of mark TOYOTA including for service "financing the purchases of vehicles by others."
The Complainant�s ultimate corporate parent has also applied to register the service mark TOYOTA FINANCIAL SERVICES, which has been was approved by the United States Patent and Trade Office and published for opposition in the official Gazette.
The Complainant and its parent companies have registered and are using inter alia the domain names , and .
The Respondent registered the domain name on March 10, 2002.
5. Parties� Contentions
A. Complainant
The Complainant�s contentions can be summarized as follows:
The Complainant�s ultimate corporate parent has used the registered mark TOYOTA in the United States substantially and continuously for more than 40 years. During that time, the Complainant�s parent has used the mark TOYOTA continuously in connection with the sale of automobiles, trucks, accessories and structural parts. The Complainant�s ultimate corporate parent has also been using the mark TOYOTA for financing the purchases of vehicles by others since 1985. Because of such extended use, there is significant goodwill and value in the mark TOYOTA. The Complainant has a license to use the mark TOYOTA in the United States and has been using the mark for a substantial period of time.
The Complainant has been licensed to use and has been using the mark TOYOTA FINANCIAL SERVICES in connection with financing purchases of vehicles by others for several years. During that time, the mark has been constantly used in connection with the mark TOYOTA. Because of its long use and recognition, the mark TOYOTA FINANCIAL SERVICES has substantial common law rights. The mark may also soon be a federally registered service mark in the United States.
The contested domain name is confusingly similar to the Complainants marks TOYOTA and TOYOTA FINANCIAL SERVICES, since it incorporates the distinctive mark TOYOTA in full with the addition of the misspelled descriptive part "finacial."
The Respondent has no rights or legitimate interest in the domain name. The Respondent is not a licensee of the Complainant and has never been authorized by the Complainant to use any of the Complainant�s marks. The Respondent does not make any kind of fair use of the domain name but uses it to redirect Internet user to an adult-oriented website.
Further the Respondent is engaged in a pattern of registering domain names incorporating well known and famous marks and has been the Respondent in more than 20 UDRP cases. The Respondent has not reacted to the Complainants cease and desist letter and it appears that the contact information in the who-is base are false.
In sum, the Respondent is using the domain name that is confusingly similar to the Complainant�s protected marks, and such use is in bad faith. The Respondent�s actions have served to intentionally divert potential customers from the Complainant�s website.
B. Respondent
The Respondent did not reply to the Complainant�s contentions.
6. Discussion and Findings
Pursuant to Paragraph 15(a) of the Rules, the Panel shall decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with Paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from, as it considers appropriate.
A. Identical or Confusingly Similar
The evidence presented by the Complainant demonstrates without doubt that the Complainant�s trademark TOYOTA has long been a federally registered trademark in the United States. The mark is very famous and has substantial value on account of its recognition and goodwill.
The Complainant has used the mark TOYOTA FINANCIAL SERVICES for a number of years and the Panel is convinced that the mark TOYOTA FINANCIAL SERVICES is known in the automobile financing field.
The Panel finds that the domain name is confusingly similar to the Complainant�s mark TOYOTA and TOYOTA FINANCIAL SERVICES. The fact that part of the domain name is misspelled does not change this assessment.
The requirement of Paragraph 4(a)(i) is met.
B. Rights or Legitimate Interests
The Complainant alleges that the Respondent has no rights or legitimate interest in the domain name. The Respondent has not rebutted this allegation and in view of the Panel it is unlikely that any such rights or interest may exist.
Therefore, the requirement of Paragraph 4(a)(ii) is also met.
C. Registered and Used in Bad Faith
Given the notoriety of the TOYOTA mark and the use of the TOYOTA FINANCIAL SERVICES mark, and based on the proven facts that the domain name is actively used to redirect to other web-sites and that the Respondent has been engaged in a pattern of conduct of registering domain names containing others trademarks, the Panel finds that the requirements of Paragraph 4(a)(iii) are also met.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name insert be transferred to the Complainant.
Knud Wallberg
Sole Panelist
Dated: September 10, 2003
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