Dollar Rent A Car Systems, Inc. v. Patrick Ory
Claim Number: FA0204000112560
Complainant is Dollar Rent A Car Systems, Inc., Tulsa, OK, USA (“Complainant”) represented by David R. Haarz, of Dickinson Wright, PLC. Respondent is Patrick Ory, Cancun, MEXICO (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dollar-carrental.com>, registered with Joker.com.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on April 29, 2002; the Forum received a hard copy of the Complaint on May 3, 2002.
On April 30, 2002, Joker.com confirmed by e-mail to the Forum that the domain name <dollar-carrental.com> is registered with Joker.com and that Respondent is the current registrant of the name. Joker.com has verified that Respondent is bound by the Joker.com 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 May 3, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 23, 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.
On June 5, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., as Panelist.
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 Respondent to Complainant.
The <dollar-carrental.com> domain name is confusingly similar to Complainant’s DOLLAR and DOLLAR RENT A CAR marks (Complainant’s family of DOLLAR marks).
Respondent has no rights or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
Respondent did not submit a Response in this proceeding.
Complainant’s vehicle rental business was founded in 1965 and has grown to almost 300 service locations in the United States, Mexico, and Canada. Complainant does business in fifty of the largest United States airport markets.
Complainant owns twenty trademark registrations in the United States for marks containing the term DOLLAR, five of which also include the word “car” (e.g., Reg. Nos. 948,360 for DOLLAR and 2,110,019 for DOLLAR RENT A CAR). Complainant has spent a significant amount of money promoting and advertising its DOLLAR marks, resulting in the marks being associated with Complainant’s vehicle rental services. Complainant also owns registrations for the DOLLAR mark in more than eighty-five foreign countries. Furthermore, Complainant currently operates a website at <dollar.com>, which it uses to conduct vehicle rental business.
Respondent registered the <dollar-carrental.com> domain name on February 2, 2001. Respondent uses the domain name to divert Internet traffic to <cheapcarrental.com>.
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
Respondent’s domain name merely adds the generic descriptor “carrental” to Complainant’s DOLLAR mark. In addition, the generic descriptor is comprised of “car” and “rental,” which are synonymous with Complainant’s business. The incorporation of such words with Complainant’s entire DOLLAR mark does not defeat a confusing similarity claim; thus, Respondent’s domain name is confusingly similar to Complainant’s family of DOLLAR marks. See Marriott Int’l v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the Respondent’s domain name <marriott-hotel.com> is confusingly similar to Complainant’s MARRIOTT mark); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to Complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which Complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Space Imaging LLC v. Brownwell, 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).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant has demonstrated its rights to and interests in the DOLLAR and DOLLAR RENT A CAR marks. Because Respondent has not submitted a Response in this proceeding, the Panel may presume it has no such rights or 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). Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant. See Vertical Solutions Mgmt., Inc. v. Webnet-marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).
Respondent uses the domain name, which is confusingly similar to Complainant’s family of DOLLAR marks, to route Internet users, trying to reach Complainant’s competing website, to <cheapcarrental.com>. This use does not meet the requirements of Policy ¶¶ 4(c)(i) and (iii). See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing website); see also Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods).
Respondent is not commonly known as DOLLAR-CARRENTAL or <dollar-carrental.com> and is only known by this Panel as Patrick Ory. Therefore, Respondent does not meet the requirements of Policy ¶ 4(c)(ii). See Great S. Wood Pres., Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000) (finding that Respondent was not commonly known by the domain name <greatsouthernwood.com> where Respondent linked the domain name to <bestoftheweb.com>); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).
Accordingly, the Panel finds that Policy ¶4(a)(ii) has been satisfied.
Respondent registered and used <dollar-carrental.com>, for commercial gain, to attract Internet users to <cheapcarrental.com>, which provides services similar to Complainant’s business; thus, creating a likelihood of confusion with Complainant’s family of DOLLAR marks. Respondent’s actions constitute bad faith under Policy ¶ 4(b)(iv). See Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 WIPO Apr. 22, 2000) (finding bad faith where Respondent attempted to attract customers to its website, <efitnesswholesale.com>, and created confusion by offering similar products for sale as Complainant); see also Fanuc Ltd v. Mach. Control Serv., FA 93667 (Nat. Arb. Forum Mar. 13, 2000) (finding that Respondent violated Policy ¶ 4(b)(iv) by selling used Fanuc parts and robots on website <fanuc.com> because customers visiting the site were confused as to the relationship between the Respondent and Complainant).
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 should be hereby granted.
Accordingly, it is Ordered that the <dollar-carrental.com> domain name be transferred from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 10, 2002
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