Europcar International v. The Cutayne's Domain (Bruce, Colleen, Matt & Evan)
Claim Number: FA0203000105772
Complainant is Europcar International, Paris, FRANCE (“Complainant”). Respondent is The Cutayne's Domain (Bruce, Colleen, Matt & Evan), Port Coquitlam, BC, CANADA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <europescar.com>, <europescars.com>, <europescarrental.com>, and <europescarrentals.com>, registered with Dotster, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on March 8, 2002; the Forum received a hard copy of the Complaint on March 15, 2002.
On March 18, 2002, Dotster, Inc. confirmed by e-mail to the Forum that the domain names <europescar.com>, <europescars.com>, <europescarrental.com>, and <europescarrentals.com> are registered with Dotster, Inc. and that the Respondent is the current registrant of the name. Dotster, Inc. has verified that Respondent is bound by the Dotster, Inc. 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 March 19, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 8, 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, firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org by e-mail.
A timely Response was received and determined to be complete on April 3, 2002.
On April 12, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch as Panelist.
Complainant requests that the domain names be transferred from Respondent to Complainant.
1. Respondent’s domain names <europescar.com>, <europescars.com>, <europescarrental.com>, and < europescarrentals.com> are confusingly similar to Complainant’s EUROPCAR mark.
2. Respondent has no rights or legitimate interests in the disputed domain names.
3. Respondent has registered the disputed domain names in bad faith.
Respondent denies that the disputed domain names are confusingly similar to Complainant’s mark; that it has no rights or legitimate interests therein; or that it registered the domain names in bad faith.
It is the finding of the Panel that the Complainant has established each of the elements discussed below and is thus entitled to an order transferring the disputed domain names from Respondent to Complainant.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
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.
Identical and/or Confusingly Similar
The adjunction of the letter “s” at the middle and the end of famous Trademark EUROPCAR will not affect the global perception of the denomination EUROPCAR. See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that the domain name <beaniesbabies.com> is confusingly similar to Complainant’s mark BEANIE BABIES); see also Nat’l Geographic Soc. v. Stoneybrook Inv., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to Complainant’s NATIONAL GEOGRAPHIC mark). The <europescarrental.com>, and <europescarrentals.com> domain names are therefore confusingly similar to its registered marks, because they merely add the generic or descriptive terms for Complainant’s service to a term confusingly similar to their famous mark. In fact, the word “rental(s)” will increase the likelihood of confusion with the trademark and the company name EUROPCAR, which is well known for services of car-rental. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with a generic word or term); see also Christie’s Inc. v. Tiffany’s Jewelry Auction Inc., D2001-0075 (WIPO Mar. 6, 2001) (finding that the domain name <christiesauction.com> is confusingly similar to the Complainant's mark since it merely adds the word auction used in its generic sense); see also Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark).
Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Respondent has no rights or legitimate interests in the domain names because:
· Respondent has not demonstrated rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii). See 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).
· Respondent has failed to establish a website connected to the disputed domain names even though it has held the registration of the domain names for over a year. Complainant contends that Respondent's passive holding of the domain name demonstrates a lack of rights and legitimate interests. See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in the domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way).
· The mere registration of these domain names are not sufficient to establish rights or legitimate interests. See Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “…merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”).
· Complainant has not licensed or otherwise authorized Respondent to use Complainant’s marks. Respondent is not commonly known by any of the domain names or any name incorporating Complainant’s their famous mark. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).
Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent registered the disputed domain names over a year ago and has yet to establish a website connected to the disputed domain names. After such a significant amount of time has passed, the passive holding of a domain name is considered to be evidence of bad faith use. See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that Respondent’s passive holding of the domain name satisfies the requirement of ¶ 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).
Policy ¶ 4(b) is also met by registering a domain name that will, if the Respondent ever puts it in use, ultimately result in consumer confusion. See Policy ¶ 4(b)(iii) & (iv). See Phat Fashions v. Kruger, FA 96193 (Nat. Arb. Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though Respondent has not used the domain name because “It makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”); see also Hewlett-Packard Co. v. Wieland, FA 95852 (Nat. Arb. Forum Dec. 6, 2000) (finding bad faith where any future use of the inactive website would result in consumer confusion); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding bad faith where any future use of the domain name would do nothing but cause confusion with Complainant’s mark, except in a few limited noncommercial or fair use situations, which were not present).
Policy ¶ 4(a)(iii) has been satisfied.
The domain names <europescar.com>, <europescars.com>, <europescarrental.com>, and < europescarrentals.com> shall hereby be transferred from Respondent to Complainant.
Dated: May 21, 2002
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