Ford Motor Company v. Mary Lamb
Claim Number: FA0902001247308
Complainant is Ford
Motor Company (“Complainant”), represented by Timothy J. Quinlan, of Brooks Kushman P.C.,
REGISTRAR
The domain name at issue is <fordcertified.com>, registered with Enom, 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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On February 12, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <fordcertified.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 February 25, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 17, 2009 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@fordcertified.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 <fordcertified.com> domain name is confusingly similar to Complainant’s FORD mark.
2. Respondent does not have any rights or legitimate interests in the <fordcertified.com> domain name.
3. Respondent registered and used the <fordcertified.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ford Motor Company, manufactures and markets
automobiles under its FORD mark.
Complainant first registered its FORD mark with the United States Patent
and Trademark Office (“USPTO”) on
Respondent registered the <fordcertified.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.
Complainant has sufficiently established its rights in the
Complainant contends Respondent’s disputed domain name is
confusingly similar to its
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights
or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these
allegations before the burden shifts to Respondent to prove it does have rights
or legitimate interests in the disputed domain name. The Panel finds Complainant has presented an
adequate prima facie case to support
its allegations and Respondent has failed to respond to these proceedings. Therefore, the Panel may conclude Respondent
does not possess rights or legitimate interests in the disputed domain
name. The Panel, however, will examine
the record to determine if Respondent has rights or legitimate interests
pursuant to Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that
the respondent has no rights or legitimate interests with respect to the
domain, the burden shifts to the respondent to provide “concrete evidence that
it has rights to or legitimate interests in the domain name at issue”); see also Broadcom Corp. v. Ibecom
Respondent’s disputed domain name resolves to a website that makes reference to Complainant’s products and provides links to competing third-party websites. Respondent presumably receives compensation in the form of click-through fees for this use of the disputed domain name. The Panel finds Respondent’s use of the disputed domain is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Complainant contends Respondent is not commonly known by the
disputed domain name based on the WHOIS information and that Respondent does
not have authority to use Complainant’s mark in any manner. The Panel agrees and finds that, absent any
evidence in the record to the contrary, Respondent is not commonly known by the
disputed domain name under Policy ¶ 4(c)(ii). See
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain name to display links to third-party websites that compete with Complainant’s automobile business. The Panel finds Respondent’s actions constitute disruption of Complainant’s business, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent presumably receives compensation in the form of click-through fees for its use of the disputed domain name. The Panel finds Respondent’s use is an attempt to profit from the goodwill Complainant has established in its FORD mark. The Panel finds this is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
The Panel finds 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 <fordcertified.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: April 7, 2009
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