DaimlerChrysler Company, LLC v. Keyword Marketing, Inc.
Claim Number: FA0708001066787
Complainant is DaimlerChrysler Company, LLC (“Complainant”), represented by George T. Schooff, 5445 Corporate Drive, Suite 200, Troy, MI 48098. Respondent is Keyword Marketing, Inc. (“Respondent”), P.O. Box 556, Main St., Charlestown KN.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain at issue is <chryslercareers.com>, registered with Belgiumdomains, LLC.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 21, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 24, 2007.
On August 24, 2007, Belgiumdomains, LLC confirmed by e-mail to the National Arbitration Forum that the <chryslercareers.com> domain name is registered with Belgiumdomains, LLC and that Respondent is the current registrant of the name. Belgiumdomains, LLC has verified that Respondent is bound by the Belgiumdomains, LLC 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 28, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 17, 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 postmaster@chryslercareers.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 24, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 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:
Complainant is in the business of producing automobiles and their structural parts, servicing automobiles, and providing automotive financing services.
Complainant holds numerous registrations with the United States Patent and Trademark Office for the CHRYSLER mark (including as to service mark Reg. No. 1,263,266, issued January 3, 1984).
Respondent is not authorized to use Complainant’s CHRYSLER mark, and Respondent is not associated with Complainant in any way.
Respondent registered the <chryslercareers.com> domain name on December 18, 2005.
Respondent uses the disputed domain name to redirect Internet users to its commercial website featuring links to third-party websites.
Additionally, Respondent offered to sell the <chryslercareers.com> domain name to
Complainant for $17,900, an amount in excess of Respondent’s out-of-pocket
costs.
Respondent’s <chryslercareers.com> domain name is confusingly similar to Complainant’s CHRYSLER mark.
Respondent does not have any rights or legitimate interests in the domain name <chryslercareers.com>.
Respondent registered and uses the <chryslercareers.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a 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 same domain name was registered and is being used by Respondent in bad faith.
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 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. 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 a 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 that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s federal registration of its CHRYSLER service
mark with the USPTO sufficiently establishes Complainant’s rights in the mark pursuant
to Policy ¶ 4(a)(i).
See Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003): “Complainant's
federal trademark registrations establish Complainant's rights in the BLIZZARD
mark.” See
also Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum Feb. 18, 2004): “Registration of the NASAL-AIRE mark
with the USPTO establishes Complainant's rights in the mark.”
Respondent’s <chryslercareers.com>
domain name is confusingly similar to Complainant’s CHRYSLER mark
inasmuch as the domain includes Complainant’s CHRYSLER mark in its entirety, and
the only difference between the domain name and Complainant’s mark is the
addition of the generic term “careers” and the generic top-level domain “.com”. These additions are insufficient to
distinguish the disputed domain name from Complainant’s mark. Thus, we conclude that the disputed domain
name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Arthur
Guinness Son & Co. (
It
has been established that the addition of a generic top-level domain is
irrelevant when considering whether a domain name is identical or confusingly
similar under the Policy.
The Panel therefore finds that
Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving that Respondent lacks rights and legitimate interests in the <chryslercareers.com> domain name. And, once Complainant has established a prima facie case, the burden shifts to Respondent to show that it nonetheless has rights or legitimate interests in the disputed domain name. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under appropriate circumstances, the assertion by a complainant that a respondent has no right or legitimate interest is sufficient to shift the burden of proof to that respondent to demonstrate that such a right or legitimate interest does exist); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights or legitimate interests with respect to a domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
In the instant case, Complainant has made out a prima facie case under the Policy.
Because Respondent has failed to answer the Complaint, we may
presume that Respondent lacks rights and legitimate interests in the disputed
domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002):
[B]ased on Respondent's failure to respond,
it is presumed that Respondent lacks all rights and legitimate interests in the
disputed domain name.
See also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for a panel to draw adverse inferences from a respondent’s failure to reply to a complaint). Nevertheless, we will now examine the record to determine if there is any basis for concluding that Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
We begin by noting that Complainant asserts that Respondent is not authorized to use Complainant’s CHRYSLER mark and that Respondent is not associated with Complainant in any way. Respondent does not deny these allegations. Furthermore, Respondent’s WHOIS information does not suggest that Respondent is commonly known by the <chryslercareers.com> domain name. We therefore conclude that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) a respondent is not a licensee of a complainant; (2) that complainant’s prior rights in the domain name precede that respondent’s registration; and (3) that respondent is not commonly known by the domain name in question).
Moreover, Complainant alleges, and Respondent does not deny,
that Respondent is using the disputed domain name to redirect Internet users to
its commercial website featuring links to third-party websites. Respondent is thus apparently attempting to
benefit commercially from the goodwill associated with Complainant’s CHRYSLER mark,
and such use of the disputed domain name does not constitute 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). See
Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003):
Respondent's demonstrated intent to divert Internet users
seeking Complainant's website to a website of Respondent and for Respondent's
benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii).
See also Am. Online, Inc. v.
Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26,
2003): “Respondent's registration and use of the <gayaol.com> domain name
with the intent to divert Internet users to Respondent's website suggests that
Respondent has no rights to or legitimate interests in the disputed domain name
pursuant to Policy Paragraph 4(a)(ii).” Further see MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000)
(finding no rights or legitimate interests in the famous MSNBC mark where a
respondent attempted to profit using a complainant’s mark by redirecting
Internet traffic to its own website).
Finally in this regard, Respondent’s lack of rights and legitimate interests in the <chryslercareers.com> domain name is further evidenced by its undenied offer to sell the disputed domain name to Complainant for an amount in excess of its out-of-pocket costs. See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003): “Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.” See also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding that a respondent’s conduct purporting to sell a domain name suggests that it has no legitimate use).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <chryslercareers.com> domain name, which we have concluded is confusingly similar to Complainant’s CHRYSLER mark, is likely to cause confusion among customers searching for Complainant’s goods and services. Specifically, customers may become confused as to the possible affiliation, endorsement, or sponsorship by Complainant of the services advertised on Respondent’s website. We are entitled to and do presume that Respondent benefits commercially from this confusion. Therefore, we conclude that Respondent’s registration and use of the domain name <chryslercareers.com> constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007): “The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because Respondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.” See also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where a respondent's use of a domain name to resolve to a website where similar services are offered to Internet users is likely to confuse users into believing that a complainant is the source of or is sponsoring the services offered at the site).
Furthermore, Respondent’s offer to sell the <chryslercareers.com> domain name to
Complainant for an amount in excess of its out-of-pockets costs is also
evidence of Respondent’s bad faith registration and use of the disputed domain
name under Policy ¶ 4(b)(i). See Little Six, Inc. v. Domain For
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <chryslercareers.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 9, 2007
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