Europcar International SA v. Powerspeed Computers aka Danny Hindalov
Claim Number: FA0112000102819
Complainant is Europcar International S.A., France (“Complainant”) represented by Eric Dupont, of Markplus International. Respondent is Danny Hindalov Powerspeed Computers, Switzerland (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <europcar.tv>, registered with dotTV Corporation.
On January 23, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist.
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 December 12, 2001; the Forum received a hard copy of the Complaint on December 17, 2001.
On December 14, 2001, dotTV Corporation confirmed by e-mail to the Forum that the domain name <europcar.tv> is registered with dotTV Corporation and that Respondent is the current registrant of the name. dotTV Corporation has verified that Respondent is bound by the dotTV Corporation 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 December 18, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 7, 2002 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 email@example.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.
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 the Respondent to the Complainant.
Respondent’s domain name <europcar.tv> is confusingly similar to Complainant’s famous trademark EUROPCAR.
Respondent has not used its domain name in commerce after registration and has never been publicly known as <europcar.tv>, therefore, the Respondent does not have rights or legitimate interests in the domain name.
Complainant’s trademark was well known worldwide prior to the registration of <europcar.tv> by the Respondent. Respondent’s registration creates a likelihood of confusion with Complainant’s well-known trademark. Further, Respondent has passively held the domain name. Therefore, the Respondent’s registration and use of <europcar.tv> constitutes bad faith as defined under Policy ¶ 4(a)(iii).
Respondent did not submit a Response.
Complainant has registered the trademark EUROPCAR both internationally and in many countries, including Respondent’s home country of Switzerland. The Swiss trademark was filed on April 13, 1993, number 414.757. Complainant uses its trademark in over 100 countries worldwide in connection with its car rental company. Complainant owns the registration of several domain names that incorporates EUROPCAR that advertises its services to the public. The majority of the Complainant’s websites are linked with <europcar.com> or <europcar.org>.
Respondent registered the <europcar.tv> domain name on October 4, 2000. Since its registration, Respondent has passively held the disputed domain name.
On February 22, 2001, Complainant sent Respondent a cease and desist letter. On March 14, 2001, Respondent’s counsel responded to the letter and requested more time to analyze the situation. After another letter from Complainant requesting resolution in the matter, dated April 10, 2001, Respondent’s counsel sent a response to the Complainant again requesting more time to look into the dispute. The Complainant still has not received a response to its initial cease and desist letter.
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 and draw such inferences it considers appropriate pursuant to paragraph 14(b) 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; and
(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.
Identical and/or Confusingly Similar
The domain name <europcar.tv> is identical to Complainant’s registered trademark EUROPCAR. The disputed domain name <europcar.tv> incorporates the Complainant’s well-known trademark in its entirety and causes confusion that there may be an association between the Respondent’s domain and the Complainant. See Little Six, Inc., v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding that <mysticlake.net> is plainly identical to Complainant’s MYSTIC LAKE trademark and service mark); see also American Golf Corp. v. Perfect Web Corp., D2000-0908 (WIPO Oct. 23, 2000) (finding that the domain name <americangolf.net> is identical and confusingly similar to Complainant’s AMERICAN GOLF marks).
Further, the addition of a country code top-level domain (i.e., ".tv") is irrelevant for purposes of determining the identical nature or confusing similarity between Complainant’s trademark EUROPCAR and <europcar.tv>. See Volkswagen of America, Inc. v Wieczorek, FA 97181 (Nat. Arb. Forum June 26, 2001) (finding confusion between <volkswagen.tv > and VOLKSWAGEN); see also World Wrestling Fed'n Entertainment, Inc. v. Rapuano, DTV2001-0010 (WIPO May 23, 2001) (finding that "[t]he addition of the country code top level domain (ccTLD) designation <.tv> does not serve to distinguish those names from Complainant’s marks since ‘.tv’ is a common Internet address identifier that is not specifically associated with Respondent").
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Respondent has failed to submit a Response in this proceeding. As a result, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Further, there is no evidence in the record that Respondent is commonly known as <europcar.tv>, and the Respondent failed to respond to the complaint, therefore, the only conclusion that can be made is that the Respondent is not commonly known by <europcar.tv> and has not satisfied Policy ¶ 4(c)(ii). See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).
Finally, because of the passive holding of <europcar.tv>, without any evidence provided by Respondent of a legitimate noncommercial or fair use of the domain name Respondent cannot satisfy Policy ¶ 4(c)(iii). See Volkswagen of America, Inc. v Wieczorek, FA 97181 (Nat. Arb. Forum June 26, 2001) (finding that the passive holding of <volkswagen.tv > is not a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Because of the fame and distinctiveness of Complainant’s trademark EUROPCAR both worldwide and in Respondent’s home country of Switzerland, Respondent knew or should have known about the trademark prior to registration. Respondent’s passive holding of the disputed domain name coupled with the fact that Respondent was on notice that the trademark was registered before the Respondent registered <europcar.tv> are evidence of bad faith under Policy ¶ 4(b)(iii). See E. & J. Gallo Winery v. Oak Inv. Group, D2000-1213 (WIPO Nov. 12, 2000) (finding bad faith where (1) Respondent knew or should have known of the Complainant’s famous GALLO marks and (2) Respondent made no use of the domain name "winegallo.com"); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
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 <europcar.tv> be transferred from Respondent to Complainant.
James P. Buchele, Panelist
Dated: January 28, 2002
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