DaimlerChrysler AG v.
Claim Number: FA0710001089028
Complainant is DaimlerChrysler AG (“Complainant”), represented by Jan
Zecher, of Lovells LLP, Warburgstr, 55,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <daimlerbank.com>, registered with Belgiumdomains, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 4, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 8, 2007.
On October 4, 2007, Belgiumdomains, LLC confirmed by e-mail to the National Arbitration Forum that the <daimlerbank.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 October 9, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 29, 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@daimlerbank.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 5, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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:
1. Respondent’s <daimlerbank.com> domain name is confusingly similar to Complainant’s DAIMLER mark.
2. Respondent does not have any rights or legitimate interests in the <daimlerbank.com> domain name.
3. Respondent registered and used the <daimlerbank.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DaimlerChrysler
AG, and its predecessors have been in operation for over 100 years providing
vehicle and financing products and services.
In 1998, the Complainant’s predecessor, Daimler-Benz merged with
Chrysler Corp. In the last ten years,
Complainant has sold products and services worth billions of dollars under the
DAIMLER mark in the
In 2006, there was much speculation that Complainant would
sell its Chrysler business, resulting in a likely name change from “DaimlerChrysler” to simply “Daimler.” Media reports were published worldwide
regarding this rumour, including in the
Further, Complainant has
shown that Respondent has served as the respondent in at least ten UDRP
proceedings within the last year in which the disputed domain names were
transferred to the respective complainant’s in those proceedings. See
Chevron Intellectual Prop. LLC v.
Respondent, Caribbean Online International Ltd., registered the <daimlerbank.com> domain name January 31, 2007. The website located at the disputed domain name displays hyperlinks the websites of Complainant’s competitors.
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 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 that 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 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 must first establish that it holds rights in the
DAIMLER mark. Policy ¶ 4(a)(i) does not
require a registration of the mark in the
The disputed domain name fully incorporates Complainant’s mark with the simple additions of the generic term “bank,” which describes Complainant’s services, and the generic top-level domain (“gTLD”) “.com.” Accordingly, the Panel finds the disputed domain name confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) ( “[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
The Panel concludes that Complainant has met its burden
under Policy ¶ 4(a)(i).
Complainant must establish that Respondent lacks rights and legitimate interests in the disputed domain name. The Panel finds that Complainant’s assertion that Respondent lacks rights and legitimate interests is sufficient to meet its burden under Policy ¶ 4(a)(ii) and shift the burden to Respondent to establish that rights or legitimate interests exist. 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).
Respondent did not respond to the Complaint in this dispute. Respondent’s failure to submit a Response permits the Panel’s presumption that Respondent holds no rights or 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 Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). The Panel is required to make no further analysis. However, at its discretion, the Panel will review the record to determine if Respondent’s rights or legitimate interests can be determined under Policy ¶ 4(c).
The record does not indicate that Respondent, “Caribbean Online International Ltd.,” is commonly known by the <daimlerbank.com> domain name. Accordingly, the Panel finds that Respondent cannot establish rights or legitimate interests under Policy ¶ 4(c)(ii). See Brown v. Sarrault, FA 99584 (Nat. Arb. Forum Oct. 16, 2001) (finding that the respondent was not commonly known by the <mobilitytrans.com> domain name because it was doing business as “Mobility Connections”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Further, Respondent’s use of the disputed domain name to
disrupt Complainant’s business by diverting Internet users seeking
Complainant’s services to websites of Complainant’s competitors is neither a bona fide offering of goods or services
nor a legitimate noncommercial or fair use.
Consequently, the Panel determines that Respondent is unable to
establish rights under Policy ¶¶ 4(c)(i) and 4(c)(iii). See TM Acquisition Corp. v. Sign Guards,
FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s
diversionary use of the complainant’s marks to send Internet users to a website
which displayed a series of links, some of which linked to the complainant’s
competitors, was not a bona fide offering of goods or services); see also Prudential Ins. Co. of Am. v. Stonybrook Invs., LTD, FA
100182 (Nat. Arb. Forum Nov. 15, 2001) (finding no rights or legitimate
interests in the disputed domain name where the respondent was using the complainant’s
mark to redirect Internet users to a website offering credit card services
unrelated to those services legitimately offered under the complainant’s mark).
The Panel concludes that Complainant has met its burden
under Policy ¶ 4(a)(ii).
Respondent uses the
disputed domain name to disrupt Complainant’s business by diverting Internet
users seeking Complainant’s products and services to websites belonging to
Complainant’s competitors. The Panel
finds Respondent’s conduct indicative of bad faith registration and use under Policy ¶¶ 4(b)(iii) and 4(b) (iv). See Disney Enters., Inc. v. Noel, FA
198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name
confusingly similar to Complainant's mark to divert Internet users to a
competitor's website. It is a reasonable inference that Respondent's purpose of
registration and use was to either disrupt or create confusion for
Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii)
[and] (iv).”); EBAY, Inc. v.
MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent
registered and used the domain name <eebay.com> in bad faith where the
respondent has used the domain name to promote competing auction sites).
Respondent registered the disputed domain name in January 2007 on the heels of news surrounding worldwide speculation that Complainant would be siphoning off its Chrysler business which would result in Complainant’s likely name change to simply “Daimler.” The Panel finds that Respondent’s registration and use of the disputed domain name is representative of opportunistic bad faith under Policy ¶ 4(a)(iii). See Sota v. Waldron, D2001-0351 (WIPO June 18, 2001) (finding that the respondent’s registration of the <seveballesterostrophy.com> domain name at the time of the announcement of the Seve Ballesteros Trophy golf tournament “strongly indicates an opportunistic registration”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the “domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’”).
Further, Complainant has adequately demonstrated that, in
the last year alone, Respondent has served as the respondent in multiple UDRP
proceedings in which the disputed domain names involved in those disputes were
transferred to the respective complainants.
Such an established history shows that Respondent has a pattern of
preventing rightful owners of marks from registering corresponding domain
names. The Panel finds this as
additional evidence of Respondent’s bad faith registration and use of the
disputed domain name under Policy ¶ 4(b)(ii). See Stevens v. Modern
Ltd.-Cayman Web Dev., FA 250005 (Nat. Arb. Forum May 17, 2004) (“Registration and use of a domain name to prevent
Complainant from reflecting its mark in a corresponding domain name through a
pattern of such conduct evidences bad faith registration and use of a domain
name pursuant to Policy 4(b)(ii).”); see
also Sport Supply Group, Inc. v. Lang,
D2004-0829 (WIPO Dec. 10, 2004)(“[Respondent] registered the
<usgames.com> domain name in order to prevent [Complainant] from
reflecting its U.S. GAMES Mark in a corresponding domain name [pursuant to
Policy ¶ 4(b)(ii)]. The pattern of such
conduct is established, inter alia, by the public decisions of two different
UDRP proceedings [against] Respondent.”).
The Panel concludes that Complainant has met its burden
under 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 <daimlerbank.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: November 19, 2007
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