Freeman Honda v. Domain Administrator
Claim Number: FA0807001215197
Complainant is Freeman
Honda (“Complainant”), represented by Mike
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <freemanhonda.com>, registered with Moniker Online Services, Inc.
The undersigned certifies that he 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On July 25, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 14, 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 postmaster@freemanhonda.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <freemanhonda.com> domain name is identical similar to Complainant’s FREEMAN HONDA mark.
2. Respondent does not have any rights or legitimate interests in the <freemanhonda.com> domain name.
3. Respondent registered and used the <freemanhonda.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Freeman Honda, operates an automobile
dealership in
Respondent registered the disputed 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.
Complainant has not registered its FREEMAN HONDA mark with a
governmental authority. Registration of
a mark with a governmental authority is unnecessary under Policy ¶ 4(a)(i),
however, provided Complainant can establish common law rights in its FREEMAN
HONDA mark. See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13,
2000) (finding that the Rules do not require that the complainant's trademark
or service mark be registered by a government authority or agency for such
rights to exist); see also Great Plains Metromall, LLC v.
Creach, FA 97044 (Nat. Arb. Forum
Complainant has operated its automobile business under its
FREEMAN HONDA mark since 2005.
Complainant has provided evidence it registered its FREEMAN HONDA mark
as a business name with the Texas Office of Secretary of State on May 2,
2005. The Panel finds Complainant has
evidenced common law rights in its FREEMAN HONDA mark pursuant to Policy ¶
4(a)(i) dating back to at least May 2, 2005.
See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding
that the complainant could establish common law rights in its GW BAKERIES mark
through consistent and continuous use of the mark, which helped the mark become
distinctive and generate “significant goodwill”); see also Tuxedos By Rose v.
Nunez, FA 95248 (Nat. Arb. Forum
Respondent’s <freemanhonda.com> domain name contains
Complainant’s FREEMAN HONDA mark with the deletion of a space and the addition
of the generic top-level domain “.com.”
The deletion of spaces and the addition of top-level domains are
irrelevant in determining whether a disputed domain name is identical to a mark
because spaces are impermissible and top-level domains are required in domain
names. Therefore, the Panel finds the
disputed domain name is identical to Complainant’s FREEMAN HONDA mark pursuant
to Policy ¶ 4(a)(i). See
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or
legitimate interests in the disputed
domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts
to Respondent to prove it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii). The Panel finds Complainant
has established a prima facie
case. Due to Respondent’s failure to
respond to the Complaint, the Panel may assume that Respondent does not have
rights and legitimate interests in the disputed domain name. The Panel will nevertheless examine
the record to determine whether Respondent has rights or legitimate interests
pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum
Respondent’s disputed domain name resolves to a website that
displays links to commercial websites that compete with Complainant. The Panel finds this use is not a use in
connection with a bona fide offering
of goods and services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial
or fair use pursuant to Policy ¶ 4(c)(iii).
See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb.
Forum
Additionally, Respondent does not appear to be commonly
known by the <freemanhonda.com> domain name. The WHOIS information and the record do not
indicate Respondent is known by the disputed domain name or has been authorized
by Complainant to use its FREEMAN HONDA mark.
Therefore, the Panel finds Respondent is not commonly known by the
disputed domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie
de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000)
(finding no rights or legitimate interest where the respondent was not commonly
known by the mark and never applied for a license or permission from the
complainant to use the trademarked name); see also Ian Schrager Hotels, L.L.C.
v. Taylor, FA 173369 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Complainant has used its FREEMAN HONDA mark in conjunction
with its automobile business. The
earliest evidence Complainant provides for the use of its FREEMAN HONDA mark in
conjunction with its business is the registration of its FREEMAN HONDA mark as
a business name with the Texas Office of the Secretary of State on
The Panel finds Policy ¶
4(a)(iii) has not been satisfied.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <freemanhonda.com> domain name REMAIN with Respondent.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: September 2, 2008
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