WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Party City Corporation v. kwan lee
Case No. D2015-0383
1. The Parties
The Complainant is Party City Corporation of Rockaway, New Jersey, United States of America (“USA”), represented by Leason Ellis, USA.
The Respondent is kwan lee of Yamagachi, Tokyo, Japan
2. The Domain Name and Registrar
The disputed domain name, <partcity.com> (the “Domain Name”), is registered with Fabulous.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 4, 2015. On March 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 10, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 11, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 16, 2015.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 March 20, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 9, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 13, 2015.
The Center appointed Tony Willoughby as the sole panelist in this matter on April 23, 2015. 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.
It is convenient at this stage to point out that the amended Complaint was occasioned by the fact that the underlying registrant, the Respondent, was using a privacy service, which concealed his identity from anyone conducting a WhoIs search of the Registrar’s database. The point of significance to note here is that the Complainant has retained in its amended Complaint the Mutual Jurisdiction that it selected in its original Complaint, namely “the jurisdiction of the courts at the location of the domain name holder’s address, as shown for the registration of the domain name in the concerned registrar’s Whois database at the time of the submission of the complaint to the Center – in this case, Queensland, Australia.”
4. Factual Background
The Complainant is a Delaware corporation based in New Jersey, USA. The unchallenged evidence of the Complainant, which the Panel accepts as fact, is that the Complainant has been engaged in “retail party supply store services” under the ”Party City” name for at least 20 years.
The Complainant is the registered proprietor of a number of PARTY CITY trade mark registrations, including by way of example, United States Registration No. 1,806,095 registered November 23, 1993 (filed March 23, 1993) in classes 16 and 42 for paper napkins and retail party supply store services, respectively. It operates a website connected to the domain name <partycity.com>.
The Domain Name was first registered on March 23, 2002. It is not known when the Respondent acquired the Domain Name. As at March 4, 2015 the Domain Name connected/re-directed to a website at “www.spirithalloween.com”, which is a website of a competitor of the Complainant also based in New Jersey, USA.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to its PARTY CITY trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered in bad faith and is being used in bad faith.
B. Identical or Confusingly Similar
The Domain Name comprises the words “part” and “city” and the generic “.com” Top Level Domain identifier. For the purposes of assessing identity and confusing similarity under Paragraph 4(a)(i) of the Policy it is permissible for the Panel to ignore the Top Level Domain identifier where it does not affect/dilute the distinctiveness of the Domain Name at the second level.
In this case the only distinctive part of the Domain Name is “partcity” at the second level, which only differs from the Complainant’s trade mark in omitting the letter “y” between the letters “t” and “c” in the middle.
The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
The Domain Name, a domain name which the Panel has found to be confusingly similar to the Complainant’s trade mark, is being used for a commercial purpose, namely, to connect to a website of a competitor of the Complainant. Self-evidently, that is not a use to which the Complainant will have authorized and on its face is not a use of the Domain Name in relation to a bona fide offering of goods or services. Furthermore, the Domain Name does not appear to be a name having any obvious association with the Respondent.
The Panel finds that the Complainant has made out a prima facie case under this element of the Policy, a case calling for an answer from the Respondent.
In the absence of any explanation from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad Faith
Were it not for the fact that the Domain Name is (a) not being used for any purpose associated with the words “part” and “city” and (b) is being used to link to a website of a competitor to the Complainant, the Complainant being the owner of the PARTY CITY trade mark, the Panel might not have assumed that the Respondent registered the Domain Name with the Complainant in mind.
As it is, however, and in the absence of any explanation from the Respondent, the Panel accepts, on the preponderance of the evidence, the Complainant’s contention that this is a simple case of typo-squatting, with the Respondent targeting the Complainant’s business for commercial gain, and that the Respondent registered the Domain Name for that purpose.
The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <partcity.com>, be transferred to the Complainant.
Date: April 24, 2015