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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
B & H Foto & Electronics Corp. (B&H) v. Peter Carrington and Party Night Inc
Case No. D2002-1090
1. The Parties
The Complainant is B & H Foto & Electronics Corp., 420 Ninth Avenue, New York, NY 10001, United States of America, represented by Alan S. Hock of Moritt Moritt Hock Hamroff & Horowitz LLP, 400 Garden City Plaza, Garden City, NY 11530, United States of America.
The Respondents are Peter Carrington and Party Night Inc of Jan Luykenstraat 58, Amsterdam 1071 CS, The Netherlands.
2. The Domain Name and Registrar
The disputed domain name is <bhphotvideo.com> ("the Domain Name") and is registered with Key-Systems GmbH ("the Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 28, 2002. The Center requested the Registrar to verify the details of the registration by email on November 29, 2002. The Registrar duly verified by email of December 2, 2002, that it is the Registrar, and that the Respondents are listed as the Registrants, and provided the contact details listed for the Respondents in its Whois database. The Registrar further stated that its terms and conditions were in English and German, that the Respondents accessed the English version of its web interface, and that the Uniform Domain Name Dispute Resolution Policy (the "Policy") applied.
The Center verified that the Complaint satisfied the formal requirements of 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 Respondents of the Complaint by courier and email to the addresses listed in the Registrar’s Whois database for the Owner and Administrative, Technical and Billing Contacts in respect of the Domain Name (all the same) and also to email@example.com, and the proceedings commenced on December 3, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was December 23, 2002. The Respondents did not submit any response and the Center notified the Respondents’ default on December 31, 2002.
The Center appointed Jonathan Turner as the sole panelist in this matter on January 7, 2003. 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.
Having reviewed the file, the Panel is satisfied that the Complaint complies with applicable formal requirements, was duly notified to the Respondents and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.
The Panel is satisfied that the registration agreement was probably in English, but if it was not, the Panel hereby determines that the language of the proceedings shall be English in accordance with the Rules, paragraph 11(a).
4. Factual Background
The Complainant retails cameras and photographic accessories, video and audio equipment and accessories, computer equipment and accessories, and other electronic goods, through a retail store called "B&H" in New York City, a catalogue service, and a website at <www.bhphotovideo.com>. The website has been operated since October 1996 and its address has been extensively advertised, including on the front and back pages and many inside pages of the Complainant’s catalogues, of which over 5 million copies are distributed annually. The Complainant has also registered "B&H" and "B&H PHOTO VIDEO AUDIO PRO" as trademarks in the United States and the European Union.
The Respondents registered the Domain Name on April 13, 2002, and caused it to resolve to a home page at <http://hanky-panky-college.com>. This page invited users to subscribe to a variety of pornographic websites and caused a series of aggressive advertisements to appear on the screen as the user attempted to close it. The Respondents have also registered a number of other domain names which are misspellings of well-known marks, including <accessaltanta.com>, <chyrslerfinancial.com>, <searcard.com>, <wochovia.com>, <wachvia.com> and <wachovai.com>.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to the trademarks "B&H" and "B&H PHOTO VIDEO AUDIO PRO" in which it has registered rights and <www.bhphotovideo.com> in which it has unregistered rights; that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Domain Name was registered and has been used in bad faith, in particular so as to cause users seeking to access the Complainant’s website to be directed instead to the Respondents’ website at <http://hanky-panky-college.com>. The Complainant refers to a number of other cases where domain names containing misspellings of well-known marks have been held to have been registered and used in bad faith, including cases involving the Respondents.
The Complainant requests cancellation, rather than transfer, of the Domain Name.
The Respondents did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4 of the Policy, the Complainant must prove (A) that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (B) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (C) that the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel considers that the Domain Name is not confusingly similar to the Complainant’s registered trademarks "B&H" and "B&H PHOTO VIDEO AUDIO PRO". However, the Panel is satisfied that the Domain Name is confusingly similar to the Complainant’s web address <www.bhphotovideo.com> and that the Complainant has trademark rights in this address as a result of its extensive use and promotion since 1996. The Domain Name differs from this address by only one character and a user seeking the Complainant’s website could easily enter the Domain Name by mistyping. Accordingly, the first requirement is satisfied.
B. Rights or Legitimate Interests
The Panel is satisfied that the Respondents have no rights or legitimate interest in respect of the Domain Name. Although the Respondents have used the Domain Name in connection with their website at <http://hanky-panky-college.com>, this use was not a bona fide offering of goods or services. It is evident from the Respondents’ record of registering misspellings of well-known marks that they were not using the Domain Name in good faith, but rather with the intention of exploiting its similarity to the Complainant’s web address and the possibility of confusion resulting from mistyping of the latter.
C. Registered and Used in Bad Faith
The Panel is likewise satisfied that the Respondents registered and have used the Domain Name in bad faith. In particular, the Panel considers that the Respondents registered and have used the Domain Name intentionally to attract Internet users to their website at <http://hanky-panky-college.com> by creating a likelihood of confusion with the Complainant’s web address, in particular by users mistyping that address. Furthermore, it is likely that the Respondents gain commercially through advertising revenue from the traffic thus misdirected to their website.
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 <bhphotvideo.com> be cancelled.
Date: January 10, 2003