Europcar International v. International
Travel House Ltd.
Claim Number: FA0206000114674
PARTIES
Complainant
is Europcar International, FRANCE
(“Complainant”) represented by Corinne
Allard. Respondent is International Travel House Ltd., New Delhi,
INDIA (“Respondent”) represented by Satish
Singh.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <europcarindia.com>,
registered with BulkRegister.com, Inc.
PANEL
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. Crary as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on June 24, 2002; the Forum received a hard copy of the
Complaint on June 26, 2002.
On
June 24, 2002, BulkRegister.com, Inc. confirmed by e-mail to the Forum that the
domain name <europcarindia.com>
is registered with BulkRegister.com, Inc. and that Respondent is the current
registrant of the name. BulkRegister.com,
Inc. has verified that Respondent is bound by the BulkRegister.com, 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
July 2, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of July 22,
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 postmaster@europcarindia.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
August 5, 2002, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the Forum appointed James A. Crary 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.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
<europcarindia.com> domain name is confusingly similar to
Complainant's EUROPCAR mark.
Respondent
has no rights or legitimate interests in the disputed domain name.
Respondent
registered and used the disputed domain name in bad faith.
B.
Respondent
Respondent
failed to submit a Response.
FINDINGS
Complainant holds
numerous registrations for the EUROPCAR mark including India (Reg. No.
519.574), Respondent’s domicile.
Complainant also owns trademark registrations in France (Reg. No.
1,547,398), United States (Reg. No. 2,002,271), and an International
Registration Number R426,021 that covers Algeria, Germany , Austria, Belarus,
Benelux, Croatia, Egypt, Spain, Hungary, Italy, Kazakstan, Liechtenstein,
Morocco, Monaco, Mongolia, Portugal, Czech Republic, Romania, Saint-Marin,
Slovakia, Slovenia, Switzerland, and Ukraine.
Complainant is one of the foremost Rental car companies in Europe. Complainant’s franchises are also in over
100 countries throughout the world.
Complainant has registered numerous domain names in various country
codes such as <europcar.com>, <europcar.de>,
<europcar.au.com>, <europcar.fj>, <europcar.gp>, and
<europcar.co.uk>.
Respondent registered
the <europcarindia.com> domain name on September 28, 2000. Respondent has not used the domain name in
any way or developed a website.
Respondent is a franchisee of Complainant. Respondent’s franchise agreement states that Complainant’s
trademark rights are exclusive, and therefore Respondent has no permission or
license to use Complainant’s mark on the Internet.
DISCUSSION
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
Complainant has established that it has
rights in the EUROPCAR mark through use and international trademark
registration. Respondent’s <europcarindia.com>
domain name is confusingly similar to Complainant’s EUROPCAR mark because it
incorporates Complainant’s entire mark and merely adds the geographic term
“India.” The addition of a geographic
term to a well-known mark does not create a distinct mark capable of overcoming
a claim of confusing similarity. See
CMGI, Inc. v. Reyes, D2000-0572 (WIPO
Aug. 8, 2000) (finding that the domain name <cmgiasia.com> is confusingly
similar to Complainant’s CMGI mark); see also Net2phone Inc, v. Netcall SAGL, D2000-0666 (WIPO Sept. 26, 2000)
(finding that the Respondent’s registration of the domain name
<net2phone-europe.com> is confusingly similar to Complainant’s mark).
The Panel finds that Policy ¶ 4(a)(i) has
been satisfied.
Rights or Legitimate Interests
Respondent has failed to come forward
with a Response. Therefore it is
presumed that Respondent has no rights or legitimate 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 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”).
Respondent registered the disputed domain
name in September of 2000 and has not developed a website or used <europcarindia.com>
for any purpose. The passive holding of
a domain name for such a long duration of time is not considered to create
rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See 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); see also Nike, Inc. v. Crystal Int’l, D2001-0102
(WIPO Mar. 19, 2001) (finding no rights or legitimate interests where
Respondent made no use of the infringing domain names); see also 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).
Furthermore, Respondent is known to this
Panel as “International Travel House Inc.” and has not come forward to present
any evidence that it is commonly known as EUROPCAR INDIA or <europcarindia.com>. Therefore, Respondent has not established
that it has rights or legitimate interests in the disputed domain name pursuant
to Policy ¶ 4(c)(ii). See 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); see also
Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where
Respondent was not commonly known by the mark and never applied for a license
or permission from Complainant to use the trademarked name).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Registration and Use in Bad Faith
The Policy recognizes that there may be
circumstances that give rise to bad faith which are not expressly listed within
the four factors of the Policy. See CBS Broadcasting, Inc. v. LA-Twilight-Zone,
D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other
circumstances can be evidence that a domain name was registered and is being
used in bad faith”); see also Cellular
One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the
criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith
evidence).
Based on the fact that Respondent is a
franchisee of Complainant, Respondent had knowledge of Complainant’s exclusive
rights in the EUROPCAR mark when it registered <europcarindia.com>. Registration of a domain name that
incorporates Complainant’s well-known mark despite knowledge of Complainant’s
rights is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). See Entrepreneur Media, Inc. v. Smith,
279
F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that "[w]here an
alleged infringer chooses a mark he knows to be similar to another, one can
infer an intent to confuse"); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr.
17, 2000) (finding that evidence of bad faith includes actual or constructive
knowledge of a commonly known mark at the time of registration).
Furthermore, Respondent’s holding of the
domain name for the past two years without developing a website is evidence of
bad faith use pursuant to Policy ¶ 4(a)(iii).
See DCI S.A. v. Link
Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the
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); see also Mondich & Am. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004
(WIPO Feb. 16, 2000) (holding that the Respondent’s failure to develop its
website in a two year period raises the inference of registration in bad
faith).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
shall be hereby granted.
Accordingly, it is Ordered that the
domain name <europcarindia.com> be transferred from
Respondent to Complainant.
James A. Crary, Panelist
Dated: August 12, 2002
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