Complainant is MTS Inc d/b/a Tower Records, West Sacramento, CA ("Complainant") represented by Lisabeth Landsman-Smith. Respondent is John Zuccarini d/b/a Cupcake Patrol, Atlanta, GA ("Respondent").

The domain name at issue is <towerrecods.com>, registered with Joker.com.

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on July 30, 2001; the Forum received a hard copy of the Complaint on July 31, 2001.

On August 6, 2001, Joker.com confirmed by e-mail to the Forum that the domain name <towerrecods.com> is registered with Joker.com and that Respondent is the current registrant of the name. Joker.com has verified that Respondent is bound by the Joker.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On August 6, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 27, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@towerrecods.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On September 10, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

Complainant requests that the domain name be transferred from Respondent to Complainant.

A. Complainant

The <towerrecods.com> domain name is confusingly similar to Complainant’s TOWER RECORDS registered trademark.

Respondent has no rights or legitimate interests in respect to the <towerrecods.com> domain name.

Respondent registered and used the <towerrecods.com> domain name in bad faith.

B. Respondent

No Response was received.

Since 1960, Complainant has sold a wide range of entertainment products under its TOWER RECORDS trademark. Today, Complainant is a world-renowned music and entertainment retailer, owning and operating 179 stores worldwide with fifty (50) franchise operations in five (5) countries. Complainant’s <towerrecords.com> website is extremely popular, and generates substantial business and goodwill for Complainant.

Complainant registered its TOWER RECORDS mark on the Principal Register of the United States Patent and Trademark Office on December 15, 1987 as Registration No. 1,469,471.

Respondent registered the <towerrecods.com> domain name on January 21, 2000. Respondent’s only use of the <towerrecods.com> domain name has been to redirect Internet users, by automatically opening up numerous browser windows, to websites providing advertising for various products and services.

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Complainant has proven that it has rights in its TOWER RECORDS mark through its United States registration. Furthermore, the <towerrecods.com> domain name is confusingly similar to Complainant’s TOWER RECORDS mark, as it merely represents a misspelling of Complainant’s mark. The <towerrecods.com> domain name materially differs from Complainant’s TOWER RECORDS mark only in the fact that the disputed domain name fails to include the second "r" in the word "records." Such a misspelling makes the disputed domain name confusingly similar to Complainant’s famous TOWER RECORDS mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Victoria’s Secret et al. v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that misspelling words and adding letters on to words does not create a distinct mark but is nevertheless confusingly similar with the Complainant’s marks).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

It is well established that a Panel has the discretion to find that Respondent has no rights or legitimate interests in the disputed domain name where Respondent fails to submit a response. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because the Respondent never submitted a response nor provided the panel with evidence to suggest otherwise).

Furthermore, when Respondent fails to submit a response the Panel is permitted to make all inferences in favor of Complainant. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint"); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from Respondent’s failure to reply to the complaint).

Respondent does not refute Complainant’s allegation that Respondent does not have rights or legitimate interests in respect to the disputed domain name. See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding "that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainant’s <THE BODY SHOP> trademark and service mark").

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Respondent’s use of the disputed domain name to activate new browser windows which display advertising messages, assumedly for commercial gain, is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted users to advertisements); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the Respondent registered the domain name <bigtex.net> to infringe on the Complainant’s good will and attract Internet users to the Respondent’s website).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.

Accordingly, it is Ordered that the domain name <towerrecods.com> be transferred from Respondent to Complainant.