Vanguard
Trademark Holdings
Claim Number: FA0906001270270
Complainant is Vanguard
Trademark Holdings USA LLC (“Complainant”), represented by Renee Reuter, of Vanguard Trademark Holdings
USA LLC,
REGISTRAR
The domain name at issue is <nationnalcarrental.com>, registered with Lead Networks Domains Pvt. Ltd.
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 June 30, 2009, Lead Networks Domains Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <nationnalcarrental.com> domain name is registered with Lead Networks Domains Pvt. Ltd. and that Respondent is the current registrant of the name. Lead Networks Domains Pvt. Ltd. has verified that Respondent is bound by the Lead Networks Domains Pvt. Ltd. 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 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 28, 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@nationnalcarrental.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 <nationnalcarrental.com> domain name is confusingly similar to Complainant’s NATIONAL CAR RENTAL mark.
2. Respondent does not have any rights or legitimate interests in the <nationnalcarrental.com> domain name.
3. Respondent registered and used the <nationnalcarrental.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vanguard Trademark Holdings USA LLC, is the
owner of the NATIONAL
Respondent registered the <nationnalcarrental.com> domain name on October 18, 2005. The disputed domain name resolves to a website containing click-through links that further resolve to the websites of Complainant and its competitors in the rental car industry.
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.
The Panel finds that Complainant’s registration with the
USPTO for the NATIONAL CAR RENTAL mark sufficiently conveys rights in the mark
to Complainant for the purposes of Policy ¶ 4(a)(i). Additionally, the Panel concludes that it is
not necessary under the Policy for Complainant to have registered its NATIONAL
CAR RENTAL mark in the country of Respondent’s residence.
Complainant contends that Respondent’s <nationnalcarrental.com> domain name is confusingly similar to Complainant’s NATIONAL CAR RENTAL mark under Policy ¶ 4(a)(i). The disputed domain name contains the distinctive portion of Complainant’s mark with the only alterations being the deletion of spaces between the words of the mark, the addition of an extra letter “n” in the word “NATIONAL,” and the affixation of the generic top-level domain “.com.” The Panel finds that these modifications fail to sufficiently negate a finding of confusing similarity under Policy ¶ 4(a)(i). Thus, the Panel finds that Respondent’s <nationnalcarrental.com> domain name is confusingly similar to Complainant’s NATIONAL CAR RENTAL mark pursuant to Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
Complainant has satisfied Policy ¶ 4(a)(i).
For the purposes of a Policy ¶ 4(a)(ii) analysis, corresponding to the factors listed in Policy ¶ 4(c), Complainant must first make a prima facie case that Respondent has no rights to and legitimate interests in the disputed domain name. The Panel finds that Complainant has done so in this proceeding. Once Complainant satisfies this burden, the Respondent then has the burden to show that it has relevant rights to or legitimate interests in the disputed domain name under Policy ¶ 4(c). In the present proceeding, Respondent did not respond to Complainant’s allegations. Such a failure permits the Panel to make an inference that Respondent lacks rights to or legitimate interests in the <nationnalcarrental.com> domain name.
However, the Panel chooses to review the record to determine whether evidence in the record would tend to suggest that Respondent has such rights or legitimate interests pursuant to Policy ¶ 4(c). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
The disputed domain name resolves to a website displaying click-through links that further resolve to Complainant’s website and to the websites of Complainant’s competitors in the car rental industry. Complainant contends that Respondent’s use of a confusingly similar domain name to redirect Internet users to the websites of Complainant’s competitors does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii), respectively. The Panel presumes that Respondent is profiting through the generation of click-through fees and therefore finds that Respondent has failed to use the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not 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), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
Furthermore, Complainant contends that Respondent is not
commonly known by the <nationnalcarrental.com> domain name under
Policy ¶ 4(c)(ii).
The pertinent WHOIS information identifies the registrant as “R.A.M.P
Services,” and the Panel has no other information to rely upon in the record
with respect to this element of the Policy.
Therefore, the Panel finds that Respondent is not commonly known by the <nationnalcarrental.com>
domain name under Policy ¶ 4(c)(ii). See
M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the
respondent was not commonly known by the <cigaraficionada.com> domain
name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence
in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA
715089
(Nat.
Arb. Forum July 17, 2006) (concluding that the respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the WHOIS information, suggesting that the
respondent was commonly known by the disputed domain name).
Finally, the Panel
finds that Respondent is taking advantage of a common misspelling of
Complainant’s NATIONAL CAR RENTAL mark.
Respondent is using this common misspelling to divert Internet users to
Respondent’s website; this practice is
commonly referred to as typosquatting.
Thus, the Panel finds that Respondent’s engagement in typosquatting is
further evidence that Respondent lacks rights and legitimate interests in the <nationnalcarrental.com>
domain name under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the disputed domain name to resolve to a
website displaying click-through links promoting businesses that are in direct
competition with Complainant in the car rental industry. The Panel finds that this diversion of
Internet users to Respondent’s disputed domain name likely disrupts
Complainant’s business and thus, constitutes bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See
David Hall Rare Coins v.
The Panel finds that Respondent’s use of a confusingly
similar domain name creates a likelihood of confusion as to Complainant’s
affiliation with the <nationnalcarrental.com> domain name. The Panel finds that Respondent is likely
profiting from that confusion through the receipt of click-through fees. Therefore, the Panel concludes that
Respondent’s actions constitute bad faith registration and use of the <nationnalcarrental.com>
domain name under 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 T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum
June 7, 2006) (holding that the registration and use of a domain name
confusingly similar to a complainant’s mark to direct Internet traffic to a
commercial “links page” in order to profit from click-through fees or other
revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Finally, the Panel
finds that Respondent has engaged in typosquatting because Respondent is taking
advantage of a common misspelling of Complainant’s NATIONAL
Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nationnalcarrental.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: August 12, 2009
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