Gulf States Toyota, Inc. and
Claim Number: FA0804001177155
Complainant is Gulf States Toyota, Inc. and
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <rockwalltoyota.com> and <randallnoetoyota.com>, registered with Network Solutions, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
15, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 5, 2008
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 and firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
<rockwalltoyota.com> and <randallnoetoyota.com>
domain names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <rockwalltoyota.com> and <randallnoetoyota.com> domain names.
3. Respondent registered and used the <rockwalltoyota.com> and <randallnoetoyota.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Gulf States Toyota, Inc. and Toyota Motor Sales,
Respondent registered the <rockwalltoyota.com> domain name on
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.
By registering the
Complainant contends that Respondent’s disputed domain names
are identical to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and
legitimate interests in the disputed domain names. If a
complainant makes a prima facie case
in support of its allegations, the burden shifts to the respondent to prove
that rights and legitimate interests exist pursuant to Policy ¶ 4(a)(ii). In this case, the Panel finds that
Complainant has established a prima facie
case and the burden is shifted to Respondent.
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
By failing to respond to the Complaint, the Panel assumes
that Respondent does not have rights or legitimate interests in the disputed
domain names. See Broadcom Corp. v. Ibecom PLC,
FA 361190 (Nat. Arb. Forum
Complainant contends that Respondent is neither commonly known by, nor licensed to register the disputed domain names. Respondent’s WHOIS information identifies Respondent as “Randall Noe Auto Group.” The Panel finds that even though Respondent uses the terms “Randall” and “Auto” in its WHOIS information, Respondent’s lack of response to the Complaint shows that Respondent lacks affirmative evidence proving that Respondent is commonly known by the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii), Respondent lacks rights and legitimate interests in the disputed domain names. See Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”); see also Gestmusic Endemol, S.A. v. operaciontriunfo.us, FA 214337 (Nat. Arb. Forum Jan. 14, 2004) (“Though Respondent’s WHOIS information lists Respondent’s name as ‘o. operaciontriunfo.us’ and organization as ‘operaciontriunfo.us,’ there is no evidence before the Panel that Respondent was actually commonly known by the [<operaciontriunfo.us>] domain name.”).
Respondent’s disputed domain names resolve websites offering vehicles in direct competition with Complainant. The Panel finds that intentionally diverting Internet users to a competing website by using a confusingly similar domain name is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Or. State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and sale of law-related books under Complainant's name is not a bona fide offering of goods and services because Respondent is using a mark confusingly similar to the Complainant's to sell competing goods.”); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s use of the disputed domain names to offer the sale of vehicles in competition with Complainant is evidence of bad faith. The Panel finds that the use of a confusingly similar domain name for the purpose of commercially benefiting is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent and the complainant were in the same line of business and the respondent was using a domain name confusingly similar to the complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
In addition, Respondent’s use of the disputed domain names to compete with Complainant
is further evidence of bad faith. The
Panel finds that a registered domain name used primarily to disrupt the
business of a competitor demonstrates bad faith registration and use pursuant
to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb.
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 relief shall be GRANTED.
Accordingly, it is Ordered that the <rockwalltoyota.com> and <randallnoetoyota.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: May 26, 2008
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