DaimlerChrysler Company LLC. v. Whois Protection
Claim Number: FA0708001052966
Complainant is DaimlerChrysler Company LLC. (“Complainant”), represented by George
T. Schooff, 5445 Corporate Drive, Suite 200,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chrysleronline.com>, registered with Rebel.com.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically August 1, 2007; the National Arbitration Forum received a hard copy of the Complaint August 6, 2007.
On August 2, 2007, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <chrysleronline.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com verified that Respondent is bound by the Rebel.com registration agreement and thereby has 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 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 4, 2007, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 12, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 National Arbitration 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 makes the following assertions:
1. The domain name that Respondent registered, <chrysleronline.com>, is confusingly similar to Complainant’s CHRYSLER mark.
2. Respondent has no rights to or legitimate interests in the <chrysleronline.com> domain name.
3. Respondent registered and used the <chrysleronline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DaimlerChrysler Company LLC, designs, manufactures, and markets automobiles worldwide. Complainant owns several trademarks worldwide including the famous CHRYSLER mark registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 428,619 issued March 25, 1947).
Respondent registered the <chrysleronline.com> domain name December 2, 2006. Respondent’s disputed domain name resolves to a website that contains links to various unrelated commercial websites such as finance, entertainment, and travel links.
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."
Given Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and will draw such inferences as the Panel considers to be appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”).
Paragraph 4(a) of the Policy requires Complainant to 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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 established rights to and legitimate interests in the CHRYSLER mark through registration of the mark with the USPTO for purposes of Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bin g Glu, FA 874496 (Nat Arb. Forum Feb. 13, 2007) (finding rights in the METLIFE mark as a result of its registration with the United States federal trademark authority); see also Automotive Racing Products, Inc. v. Linecom, FA 836787 (Nat. Arb. Forum Dec. 21, 2006) (finding that the Complainant’s federal trademark registration establishes rights under Policy ¶ 4(a)(i)).
Complainant contends that Respondent’s <chrysleronline.com> domain name is confusingly similar to Complainant’s mark. Respondent’s domain name contains Complainant’s entire CHRYSLER mark and adds the term “online” along with the generic top-level domain (“gTLD”) “.com.” The Panel finds that Respondent’s <chrysleronline.com> domain name is confusingly similar to Complainant’s mark for purposes of Policy ¶ 4(a)(i). See Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to the complainant’s BROADCOM mark); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant contends that Respondent does not have rights or legitimate interests in the <chrysleronline.com> domain name. In circumstances such as this where Respondent has failed to respond, the Panel accepts Complainant’s assertions as true, finding that Complainant made a prima facie case under the Policy. Once a prima facie case is shown, the burden of showing rights or legitimate interests shifts from Complainant to Respondent. The Panel finds that this Complainant made a prima facie case. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Complainant submitted evidence showing that Respondent is using the <chrysleronline.com> domain name to operate a website that features links to various commercial sites that seek to compete with Complainant’s financial services business. The Panel infers from Respondent’s use of the disputed domain name that it is collecting click-through fees for each Internet user redirected to a website other than Complainant’s. Previous panels have held that the use of a domain name found to be confusingly similar to an established mark for the purpose of collecting click-through fees is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Moreover, Complainant contends that it has not licensed Respondent to register domain names featuring Complainant’s CHRYSLER mark. Without evidence to the contrary, the Panel finds that Respondent has not established rights to or legitimate interests in the <chrysleronline.com> domain name for purposes of Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent is using the <chrysleronline.com> domain name to operate a website that features links to various commercial websites, from which Respondent presumably collects click-through fees. The Panel finds that Respondent’s use will likely cause confusion among Internet users as to Complainant’s sponsorship of or affiliation with the resulting websites. Profit from such confusion supports findings of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chrysleronline.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: September 26, 2007.
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