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and Mediation Center
Speedway Properties Company, LLC v. Registrant
Case No. D2005-1260
1. The Parties
The Complainant is Speedway Properties Company, LLC, , Concord, North Carolina , United States of America, represented by Moore & Van Allen, PLLC, United States of America.
The Respondent is Registrant, Hong Kong, SAR of China.
2. The Domain Name and Registrar
The disputed domain name <lasvegasmotorspeedway.com>is registered with
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2005. On December 7, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On December 7, 2005, eNom 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 December 9, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was December 29, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2006.
The Center appointed Gabriel F. Leonardos as the Sole
Panelist in this matter on January 17, 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, Speedway Properties Company, LLC, is a limited liability corporation organized under the laws of the State of Delaware, United States of America and has first used the mark LAS VEGAS MOTOR SPEED WAY in 1998 for motorsports entertainment services for its racing facility in Las Vegas.
The Complainant secured and maintains in the United States registration U.S. 2,390.864 for its trademark LAS VEGAS MOTOR SPEED WAY, filed on September 21, 1998, and registered on October 3, 2000, for “motorsports entertainment in the nature of racing, namely, dragsters, motorcycles, openwheel vehicles, stock cars and trucks, and motor powered vehicles”. Moreover, along with the operation of the Las Vegas Motor Speeway, Complainant operates a website “www.lvms.com” through its subsidiary Speedway Motorsports, Inc.
The Respondent registered the disputed domain name
<lasvegasmotorspeedway.com> with the Registrar Enom, Inc. on April 9, 2003.
5. Parties’ Contentions
The Complainant is the owner of trademark LAS VEGAS MOTOR SPEED WAY, in the United States, as shown in the table below:
LAS VEGAS MOTOR SPEED WAY
October 3, 2000
The disputed domain name is identical to the Complainant’s registered trademark “LAS VEGAS MOTOR SPEED WAY”. In effect the disputed domain name <lasvegasmotorspeedway.com> contains in its entirety the Complainant’s trademark with the exception of the lack of space between the words in the mark. Therefore, the requirement of the Policy, paragraph 4(a)(i) is fully met.
Before bringing the case to the WIPO administrative panel the Complainant, in an effort to try to obtain the transfer of the disputed domain name, notified the Respondent by means of a demand letter sent by international registered mail to the Respondent’s address on August 29, 2005. Following up this matter the Complainant sent an e-mail on September 13, 2005 to the Respondent’s e-mail address provided in the Whois database, namely firstname.lastname@example.org, however, the Respondent never answered either communication.
Complainant argues that the Respondent is not a licensee of Complainant, nor is authorized to use Complainant’s trademark. In addition Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services, is not commonly known by the disputed domain name and is not making a legitimate noncommercial or fair use of the disputed domain name without the intent for commercial gain. In fact, the Complainant alleges that the Respondent is deceptively misdirecting visitors from the Complainant’s website by providing links to websites and for ticket sales for motorsports entertainment unrelated to Complainant while making use of the Complainant’s trademark.
It is evident that the reputation of the Complainant’s trademark lured the Respondent’s greed, proving the Respondent’s intention to attract visitors otherwise intending to visit Complainant’s website by creating and exploiting a likelihood of confusion with Complainant’s mark. In addition, by means of the disputed domain name the Respondent appears to have the intent to obtain financial gain through the advertising of competing, unrelated ticket sales for motorsports entertainment at Complainant’s facility.
Thus, there is no doubt that the Respondent registered the disputed domain name to create confusion as to the source sponsorship, affiliation, and/or endorsement of the domain name with that of the Complainant.
The Complainant further argues that the Respondent furnished false contact details to the Registrar’s registry. According to the Whois database the Respondent listed himself as “Registrant” without mentioning any name or corporate name.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
According to paragraph 4(a) of the Policy the Complainant must prove each of the following:
(i) That the domain name registered by the Respondent is identical or confusingly similar to the trademarks or service marks in which the Complainant has rights; and
(ii) That the Respondent has no rights or no legitimate interests in respect of the domain name; and
(iii) That the domain name has been registered and is used in bad faith.
A. Identical or Confusingly Similar
The Complainant owns a registered trademark for the expression LAS VEGAS MOTOR SPEED WAY, U.S. 2,390.864, which pre-date the Respondent’s registration of the Domain name. The only difference between the disputed domain name and the Complainant’s trademark LAS VEGAS MOTOR SPEED WAY is the lack of space between the words in the mark. Therefore, there is no doubt that Respondent’s domain name is confusingly similar.
In this context, the Panel finds that the domain name <lasvegasmotorspeedway.com> is confusingly similar to Complainant’s trademark LAS VEGAS MOTOR SPEED WAY.
B. Rights or Legitimate Interests
The Panel understands that under paragraph 4(a)(ii) of the Policy the overall
burden of proof is on Complainant. However, once the Complainant presents a
prima facie evidence that the Respondent lacks rights or legitimate interest
the burden shifts to the Respondent as already seen in Julian Barnes v. Old
Barn Studios Limited, WIPO Case No. D2001-0121
and Belupo d.d. v. Wachem d.o.o, WIPO
Case No. D2004-0110.
Respondent has not filed any Response to the Complaint and thus has not provided any other evidence or elements to justify any rights or legitimate interest in connection with the disputed domain name. Therefore, the Panel has found no indication in the evidence it received that any of the circumstances described in paragraph 4(c)(i)-(iii) could apply to the present matter.
In addition, Complainant has no relationship whatsoever with Respondent and has never authorized Respondent to use trademark LAS VEGAS MOTOR SPEED WAY or to apply to use of any domain name incorporating the mentioned trademark.
Given the circumstances the Panel finds that Respondent has no right or legitimate interest in respect to the Domain Name (the Policy, paragraph 4(a)(ii)).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the policy specifies certain non exhaustive circumstances which, if found by the Panel to be present, are evidence of the registration and use of the Domain Name in bad faith.
The Panel is convinced that Respondent was aware of Complainant’s trademark rights at the time of registration of the disputed domain name, particularly because Respondent appears to have developed activities in the same field as Complainant. This unquestionable knowledge of the Complainant’s trademark is confirmed by the fact that the disputed domain name <lasvegasmotorspeedway.com> contains in its entirety the Complainant’s trademark LAS VEGAS MOTOR SPEED WAY with the exception of the spaces between the words in the mark.
Furthermore, the Panel understands that in using the Domain Name to sell ticket sales for motorsports entertainment, the Respondent has intentionally attempted to attract for commercial gain, Internet uses to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
Notwithstanding the above, the Panel further finds that the Respondent’s
bad faith is also evidenced by its attempt to hide its true identity. In fact,
Respondent has taken deliberate steps to ensure that its true identity could
not be known merely by listing himself as “Registrant” for administrative,
technical and registrant contact instead of mentioning the name of an actual
person or corporate name, Telstra Corporation Limited v. Nuclear Marshmallows,
WIPO Case No. D2000-0003 and Hunton
& Williams v. American Distribution Systems, Inc., WIPO
Case No. D2000-0501.
Accordingly, the Panel determines that Respondent
has acted in bad faith within the meaning of paragraph 4(b)(iv) 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, <lasvegasmotorspeedway.com> be transferred to the Complainant.
Gabriel F. Leonardos
Dated: January 31, 2006