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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Trans World Entertainment Corporation and Trans World New York, LLC v. William Vaughan

Case No. D2007-1907

1. The Parties

The Complainants are Trans World Entertainment Corporation and Trans World New York, LLC, both of New York, United States of America (“USA”), represented by Cahill Gordon & Reindel of Washington DC, USA.

The Respondent is William Vaughan of Queensland, Australia.

2. The Domain Name and Registrar

The disputed domain name <transworldentertainment.com> (the “Domain Name”) is registered with InnerWise, Inc. d/b/a ItsYourDomain.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on December 20, 2007 and in hard copy on January 3, 2008. The Center transmitted its request for registrar verification to the Registrar by email on December 21, 2007. The Registrar replied by email the same day confirming that it was the registrar and the Respondent was the registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the registration, that the Domain Name would remain locked during this proceeding unless it expired, and that the registration agreement was in English and contained a submission to the jurisdiction at the Registrar’s principal office. The Registrar provided the full contact details in respect of the registration held on its Whois database.

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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 7, 2008. The Complaint appears to have been delivered successfully by email and courier to contact addresses in the Registrar’s Whois database, and in any event the requirements of the Rules for notification were satisfied.

In accordance with paragraph 5(a) of the Rules, the due date for Response was January 27, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 28, 2008. On February 1, 2008, the Respondent informed the Center by email that it would release the Domain Name to the Complainant. However, the Parties did not reach a settlement and the Center proceeded accordingly.

The Center appointed Jonathan Turner as the sole panelist in this matter on February 6, 2008. 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 complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.

4. Factual Background

The First Complainant’s subsidiaries and affiliates retail pre-recorded music and video products at physical premises and over the Internet. The Second Complainant, a subsidiary of the First Complainant, is registered as the proprietor of the service mark TRANS WORLD ENTERTAINMENT in the USA in respect of various retail entertainment store services relating in particular to pre-recorded music and video products. The Complainants’ group uses this mark in the banner of its website at “www.twec.com”.

The Complainants learned of the registration of the Domain Name after a person who called himself “Tim Powers” contacted them on December 4, 2007, informing them that his “client” wished to register 14 variants of <transworldentertainment.com> and offering to register these domain names for them.

The Respondent has directed the Domain Name to a website with a banner displaying “Welcome to transworldentertainment.com” followed by links to various websites including, in particular, websites of the Complainant and its competitors promoting video and pre-recorded music. The Complainant’s attorneys sent a cease and desist letter to the Respondent on December 10, 2007, but did not receive any reply.

5. Parties’ Contentions

A. Complainants

The Complainants contend that the Domain Name is identical or confusingly similar to the mark TRANS WORLD ENTERTAINMENT in which the Second Complainant has registered rights; that the Respondent has no rights or legitimate interests in respect of the Domain Name or any corresponding name; and that it was registered and is being used in bad faith.

The Complainants maintain that the Respondent’s use of the Domain Name for a website containing links to competitors of the Complainant does not constitute a bona fide offering of goods or services by the Respondent. The Complainants submit that the Respondent is using the Domain Name intentionally to attract Internet users to its website by creating a likelihood of confusion with the Complainants’ mark as to source, sponsorship or affiliation. The Complainants also allege that some of the contact details provided by the Respondent are invalid. The Complainants further argue that the Respondent’s failure to respond to their cease and desist letter is further evidence of bad faith.

B. Respondent

As mentioned above, the Respondent did not reply to the Complainants’ contentions.

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, to succeed in this proceeding, the Complainant must prove (A) that the Domain Name is identical or confusingly similar to a mark in which it has rights, (B) that the Respondent has no rights or legitimate interests in respect of the Domain Name, and (C) that the Domain Name was registered and is being used in bad faith. These requirements will be considered in turn.

A. Identical or Confusingly Similar

It is clear that the Second Complainant has registered rights in the mark TRANS WORLD ENTERTAINMENT. The Domain Name is confusingly similar to this mark, from which it differs only in the joining of the words together and the generic .com suffix. Many Internet users would assume that the Domain Name refers to the Complainants group. The first requirement of the Policy is satisfied.

B. Rights or Legitimate Interests

The Respondent has not used the Domain Name or any corresponding name in connection with any bona fide offering of goods or services. The Respondent’s use of the Domain Name for a website containing pages of links, apparently generated automatically, does not constitute a bona fide offering of goods or services within the meaning of the Policy. On the contrary, it is a use in bad faith with intent to divert Internet users by confusion with the Complainants’ mark and thereby obtain profit from click-through commissions.

The Respondent is not commonly known by the Domain Name. Nor is he making any legitimate non-commercial or fair use of the Domain Name. On the contrary, he is using it for commercial gain by misleadingly diverting consumers.

There does not appear to be any other basis on which the Respondent might have rights or legitimate interests in respect of the Domain Name. Furthermore the Respondent appears to have accepted that it has no right or legitimate interest in the Domain Name by offering to release it to the Complainants. The second requirement of the Policy is satisfied.

C. Registered and Used in Bad Faith

It is apparent from the evidence that the Respondent intends to attract Internet users to his website by confusion with the Complainants’ mark for commercial gain in the form of click-through commissions on sponsored links. This constitutes evidence of bad faith registration and use in accordance with paragraph 4(b)(iv) of the Policy.

The Respondent’s use of the Domain Name also disrupts the Complainants’ business without justification by diverting Internet users through the links on the Respondent’s website to websites of the Complainants’ competitors.

In all the circumstances, the Panel concludes on the evidence that the Respondent registered and is using the Domain Name in bad faith. The third requirement of the Policy is satisfied.

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, <transworldentertainment.com>, be transferred to the Complainants.

Jonathan Turner
Sole Panelist

Dated: February 20, 2008