Ford Motor Company and Ford
Motor Credit Company v.
Claim Number: FA0806001212882
PARTIES
Complainants are Ford Motor Company and Ford Motor Credit Company,
(“Complainants”) represented by Hope V. Shovein, of Brooks
Kushman P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ford-credit.us>, registered with Godaddy.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.
Honorable Karl V. Fink (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on June 26, 2008;
the Forum received a hard copy of the Complaint on June 30, 2008.
On June 27, 2008, Godaddy.com, Inc. confirmed by e-mail to the
Forum that the <ford-credit.us> domain name is registered with Godaddy.com,
Inc. and that Respondent is the current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and
has thereby agreed to resolve domain-name disputes brought by third parties in
accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution
Policy (the “Policy”).
On July 8, 2008, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 28, 2008 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On August 1, 2008, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed Honorable Karl V.
Fink (Ret.) 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. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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
1. Respondent’s <ford-credit.us> domain name is confusingly similar to Complainant’s FORD CREDIT mark.
2.
Respondent does not have any rights or
legitimate interests in the <ford-credit.us>
domain name.
3.
Respondent registered and used the <ford-credit.us> domain name in bad
faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant Ford Motor Company first began
selling automobiles under the FORD mark as early as 1903. Complainant Ford Motor Credit Company has
been assisting in the financing of vehicles for more than 50 million customers
of Ford Motor Company since roughly 1959.
Currently, Complainant Ford Motor Company manages approximately US $149
billion in receivables. Complainants own
a registration for the FORD CREDIT mark through the United States Patent and
Trademark Office (“USPTO”) (Reg. No. 2,598,583 issued July 23, 2002) for the
financing of motor vehicle leasing, motor vehicle sales, credit cards services
and insurance.
The <ford-credit.us>
domain name was registered on April 3,
2007. It currently resolves to a website
utilizing Complainants’ FORD CREDIT mark and a banner stating “Welcome to
Ford-Credit Link online.” It then states
that the Internet user has been “pre-approved through our exclusive program
available only at the authorized Dealer listed on the mailer or internet
notification you received recently.”
Direct mail advertisements have been sent through the post to current
and potential customers of Complainants utilizing Complainants’ mark and
indicating that a “National Lending Source” is offering financial services in
association with Complainants. The
direct mail advertisements lead individuals to the disputed domain name.
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(f), 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 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
The Panel finds that Complainants have
sufficiently established rights in the FORD CREDIT mark through registration
with the USPTO pursuant to Policy ¶ 4(a)(i).
See Microsoft Corp. v. Burkes, FA 652743 (Nat.
Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT
mark through registration of the mark with the USPTO.”); see also
The <ford-credit.us> domain name contains the country-code top-level domain (“ccTLD”) “.us,” which is insufficient to adequately distinguish the disputed domain name. See Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that the addition of the country-code “.us” fails to add any distinguishing characteristic to a disputed domain name); see also Lifetouch, Inc. v. Fox Photographics, FA 414667 (Nat. Arb. Forum Mar. 21, 2005) (finding the respondent’s <lifetouch.us> domain name to be identical to the complainant’s LIFETOUCH mark because “[t]he addition of “.us” to a mark fails to distinguish the domain name from the mark pursuant to the Policy”). Moreover, the disputed domain name adds a hyphen between the words “FORD” and “CREDIT” in Complainants’ mark. The addition of a hyphen fails to differentiate a mark from a disputed domain name. See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the addition of a hyphen between terms of a registered mark did not differentiate the <p-zero.org> domain name from the P ZERO mark under UDRP Policy ¶ 4(a)(i)); see also Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a [UDRP] Policy ¶ 4(a)(i) confusingly similar analysis.”). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainants’ mark pursuant to Policy ¶ 4(a)(i).
The Panel concludes that Complainant has
satisfied Policy ¶ 4(a)(i).
Rights
or Legitimate Interests
Under Policy ¶ 4(a)(ii), Complainants must
first establish a prima facie case that Respondent lacks rights and
legitimate interests in the disputed domain name. The Panel finds that Complainant has met this
burden and that it is accordingly shifted to Respondent to demonstrate that it
does have rights or legitimate interests in the disputed domain name. See Hanna-Barbera Prods., Inc. v.
Entm’t Commentaries,
FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must
first make a prima facie case that the respondent lacks rights and
legitimate interests in the disputed domain name under UDRP Policy ¶ 4(a)(ii)
before the burden shifts to the respondent to show that it does have rights or
legitimate interests in a domain name); see
also Document Techs., Inc. v. Int’l Elec. Commc’ns Inc.,
D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the [UDRP] Policy
requires that the Complainant prove the presence of this element (along with
the other two), once a Complainant makes out a prima facie showing, the
burden of production on this factor shifts to the Respondent to rebut the
showing by providing concrete evidence that it has rights to or legitimate
interests in the Domain Name.”).
However, Respondent has failed to reply to
the Complaint. Therefore, the Panel may
presume that Respondent lacks rights and legitimate interests in the disputed
domain name. The Panel will nonetheless
continue to examine the record in consideration of the elements listed under
Policy ¶ 4(c). See 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.”); see also Euromarket Designs,
Inc. v. Domain For Sale VMI, D2000-1195 (WIPO Oct. 26, 2000) (“In
the absence of direct evidence, the complainant and the panel must resort to
reasonable inferences from whatever evidence is in the record. In addition . . . Paragraph 14(b) of the [UDRP]
Rules [authorizes] a panel to draw such inferences from respondent’s failure to
respond ‘as it considers appropriate.’”).
Respondent has provided no evidence that it
ever was or is the owner or beneficiary of any trademarks reflected in the
disputed domain name. Accordingly, the
Panel finds that Respondent does not own any trademarks or services marks
sufficient for establishing rights under Policy ¶ 4(c)(i). See Meow
Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding
that there was no evidence that Respondent was the owner or beneficiary of a
mark that is identical to the <persiankitty.com> domain name)
Pepsico,
Inc. v Becky, FA 117014
(Nat. Arb. Forum Sept. 3, 2002) (holding that because Respondent did not own
any trademarks or service marks reflecting the <pepsicola.us> domain
name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Furthermore, Respondent appears to use
Complainants’ mark without permission or license from Complainant to do
so. Additionally, there is nothing in
the record, including the WHOIS information, which indicates that Respondent is
or ever was commonly known by the disputed domain name. Without any additional information, the Panel
finds that Respondent is not commonly known by the <ford-credit.us> domain name pursuant to Policy ¶ 4(c)(iii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the
respondent was not commonly known by the <lilpunk.com> domain name as
there was no evidence in the record showing that the respondent was commonly
known by that domain name, including the WHOIS information as well as the
complainant’s assertion that it did not authorize or license the respondent’s
use of its mark in a domain name); see
also Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum
Apr. 18, 2007) (concluding that the respondent was not commonly known by the
<thirteen.com> domain name based on all evidence in the record, and the
respondent did not counter this argument).
The <ford-credit.us>
domain name resolves to a website utilizing Complainants’ mark and purports to
offer financial services in direct competition with those offered under
Complainants’ FORD CREDIT mark. The
Panel finds that this is neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) or a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See Am.
Int’l Group, Inc. v. Benjamin, FA 944242 (Nat. Arb. Forum May 11, 2007)
(finding that the respondent’s use of a confusingly similar domain name to
advertise real estate services which competed with the complainant’s business
did not constitute a bona fide
offering of goods or services under UDRP Policy ¶ 4(c)(i), or a legitimate noncommercial
or fair use under UDRP Policy ¶ 4(c)(iii)); see
also 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.”).
The Panel concludes that Complainant has
satisfied Policy ¶ 4(a)(ii).
Registration
or Use in Bad Faith
The disputed domain name resolves to a
website offering direct competing financial services. The Panel finds that that is sufficient
evidence to establish Respondent’s bad faith registration or use of the <ford-credit.us> domain name pursuant to Policy ¶ 4(b)(iii).
See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat.
Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to
divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of
bad faith registration and use pursuant to [UDRP] Policy ¶ 4(b)(iii).”); see also Spark Networks PLC v. Houlihan, FA 653476
(Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of
a domain name substantially similar to Complainant’s AMERICAN SINGLES mark in
order to operate a competing online dating website supported a finding that
respondent registered and used the domain name to disrupt the complainant’s
business under UDRP Policy ¶ 4(b)(iii)).
Moreover, this competing website displays the
FORD CREDIT mark and gives the appearance of being affiliated with or approved
by Complainants. Likewise, the
associated direct mail advertisements directed their receivers to go to the
disputed domain name, which further indicates that Respondent is either
offering or attempting to offer financial services that compete with
Complainants. Furthermore, the use of
Complainants’ mark gives rise to the impression that the disputed domain name
is associated with Complainants. As a
consequence, the Panel considers this to be further evidence that Respondent
registered or is using the <ford-credit.us> domain name in bad faith pursuant to Policy ¶
4(b)(iv). See Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr.
22, 2000) (finding bad faith pursuant to UDRP 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); see
also World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles,
D2000-1306 (WIPO Jan. 24, 2001) (concluding that the respondent registered and
used the <wwfauction.com> domain name in bad faith because the name
resolved to a commercial website that the complainant’s customers were likely
to confuse with the source of the complainant’s products, especially because of
the respondent’s prominent use of the complainant’s logo on the site).
Additionally, the Panel considers
Respondent’s use of Complainants’ mark on the website that resolves from the
disputed domain name and the use of the mark on the direct mail advertisements
asserted to be related to the disputed domain name to be further evidence of
Respondent’s bad faith registration or use under Policy ¶ 4(a)(iii). See DaimlerChrysler Corp. v. Bargman,
D2000-0222 (WIPO May 29, 2000) (finding that the respondent’s use of the
title “Dodgeviper.com Official Home Page” gave consumers the impression that
the complainant endorsed and sponsored the respondent’s website); see also
Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May
30, 2003) (finding that the disputed domain name was registered and used in bad
faith where the respondent hosted a website that “duplicated Complainant’s mark
and logo, giving every appearance of being associated or affiliated with
Complainant’s business . . . to perpetrate a fraud upon
individual shareholders who respected the goodwill surrounding the AIG mark”).
The Panel concludes that Complainant has
satisfied Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ford-credit.us> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: August 8, 2008
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