WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Toyota Motor Credit Corporation v. Yi Zhang, ZJ
Case No. D2006-1115
1. The Parties
The Complainant is Toyota Motor Credit Corporation, California, United States of America, represented by Howrey LLP, United States of America.
The Respondent is Yi Zhang, ZJ, Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <lexusfinacial.com> is registered with Intercosmos Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 30, 2006. On September 1, 2006, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On September 1, 2006, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that 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 September 12, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 2, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 4, 2006.
The Center appointed Adam Taylor as the Sole Panelist in this matter on November 9, 2006. 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 is a wholly owned subsidiary of Toyota Motor Corporation (a Japanese corporation). It provides leasing, financing and other financial services to authorized Toyota dealers and their customers in the United States (excluding Hawaii) and Puerto Rico.
The Complainant has used the mark LEXUS FINANCIAL SERVICES in the United States since 1991 and has spent substantial sums advertising and promoting that mark for many years.
Toyota Motor Corporation owns the following United States Trademarks for the words LEXUS FINANCIAL SERVICES in relation to motor vehicle financing and insurance: Registration No. 2,884,937 issued September 14, 2004 and registration No. 2,851,110 issued June 8, 2004.
The Complainant’s main website is at “www.lexusfinancial.com”.
The Respondent registered the disputed domain name on November 27, 2005.
As of August 30, 2006, the disputed domain name resolved to a directory website branded with the disputed domain name with affiliate links referring to services similar to those of the Complainant including vehicle financing.
The Complainant sent a cease and desist letter by post to the Respondent on March 21, 2006, but the letter was returned marked “insufficient address”. The letter was retransmitted by email on May 8, 2006. No response was received.
5. Parties’ Contentions
Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant’s trademark. It differs only by the omission of the letter “n” in the word “financial” and the absence of “services”. This is an intentional misspelling. The disputed domain name is also visually and phonetically similar to the Complainant’s mark.
Rights or Legitimate Interests
The Respondent is not using the disputed domain name for a bona fide offering of goods and services within the meaning of the Policy because it provides a directory comprised of links to the Complainant’s competitors.
Use of domain name for links to other sites is traditionally revenue generating and therefore not a legitimate non-commercial or fair use under the Policy.
The Respondent has not been licensed to use the mark LEXUS FINANCIAL SERVICES.
The Respondent is not commonly known by the disputed domain name. Rather, the Respondent uses a domain name with a common typographical error.
Registered and Used in Bad Faith
The Respondent has used the disputed domain name to attract, for commercial gain, Internet users to it website listing related sponsored links by creating a likelihood of confusion with the Complainant’s mark. The Respondent’s use of the disputed domain name shows that the Respondent was aware of the Complainant’s rights when registering and using the disputed domain name.
Registration and use of a domain name with an obvious typographic error is indicative of bad faith.
The Respondent’s failure to respond to the Complainant’s communications is further evidence of bad faith as is the Respondent’s use of an inaccurate address on the Whois.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant owns common law rights in the term LEXUS FINANCIAL SERVICES by virtue of extensive use over many years.
The Panel does not have to consider whether the Complainant can also rely on the registered trademarks owned by the Complainant’s parent company.
The disputed domain name differs from the trademark only by the omission of the second “n” from “financial” and of the descriptive term “services” from the trademark. These differences are insignificant and the disputed domain name still has the obvious potential to cause confusion with the Complainant’s trademark, particularly given the inclusion of the distinctive term “Lexus” in the domain name. The domain suffix can be disregarded for the purposes of the comparison.
The Panel concludes that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Panel therefore finds that the Complainant has established the first element of the Policy.
B. Rights or Legitimate Interests
The Complainant must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondent to rebut the presumption of absence of rights or legitimate interests thereby created. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc., WIPO Case No. D2003-0070.
The Complainant has not licensed or otherwise authorized the Respondent to use its trademark.
As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to intentionally attempt to attract, confuse and profit from Internet users seeking the Complainant. Such use of the disputed domain name could not be said to be bona fide.
There is no evidence before the Panel that paragraphs 4(c)(ii) or (iii) of the Policy apply.
The Panel finds that the Complainant has established a prima facie case of lack of rights and legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of the Policy.
C. Registered and Used in Bad Faith
It is difficult to conceive of any genuine reason why the Respondent would wish to register a domain name including the distinctive term “Lexus” plus the misspelling “Finacial”. The Panel considers that the disputed domain name was clearly intended to be a misspelling of the Complainant’s trademark in order to attract internet users who mistype the Complainant’s trademark into their web browsers. Such users are taken to a website with affiliate links referring to services similar to those of the Complainant but which in fact lead to the Complainant’s competitors. Furthermore, the site at the disputed domain name is prominently branded with the disputed domain name, thereby compounding the likelihood of confusion.
The Respondent has not come forward to deny that the Complainant’s assertions of bad faith let alone offer any explanation for its registration and use of the disputed domain name.
The Panel concludes from the foregoing that the Respondent has registered and used the disputed domain name in bad faith in accordance with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trademark. The Panel therefore finds that the Complainant has established the third element of the Policy.
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, <lexusfinacial.com> be transferred to the Complainant.
Dated: November 23, 2006