national arbitration forum

 

DECISION

 

Vanguard Trademark Holdings USA LLC v. R.A.M.P Services

Claim Number: FA0907001273604

 

PARTIES

Complainant is Vanguard Trademark Holdings USA LLC (“Complainant”), represented by David R. Haarz, of Harness, Dickey & Pierce, P.L.C., Virginia, USA.  Respondent is R.A.M.P Services (“Respondent”), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <nationaalcarrental.com>, registered with Lead Networks Domains Pvt. Ltd.

 

PANEL

The undersigned certifies that he or she 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.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on July 14, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 15, 2009.

 

On July 23, 2009, Lead Networks Domains Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <nationaalcarrental.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 28, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 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@nationaalcarrental.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On August 21, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.

 

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <nationaalcarrental.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 <nationaalcarrental.com> domain name.

 

3.      Respondent registered and used the <nationaalcarrental.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Vanguard Trademark Holdings USA LLC, owns a trademark registration through the United States Patent and Trademark Office (“USPTO”) for the NATIONAL CAR RENTAL mark (Reg. No. 1,540,913 issued May 23, 1989) for use in connection with its rental car service in the United States, Canada, Mexico, the Caribbean, Latin America, Asia, and the Pacific Rim.

 

Respondent registered the <nationaalcarrental.com> domain name on October 7, 2007.  The disputed domain name resolves to a website with the heading “Nationaalcarrental.com” and contains links to “Cheap Auto Insurance,” “Car Insurance,” “Car Rental,” “Cheap Car Insurance,” and “Cheap Car Rental.”  Some of these links direct Internet users to Complainant’s direct competitors.

 

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 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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has established rights in the NATIONAL CAR RENTAL mark (Reg. No. 1,540,913 issued May 23, 1989) pursuant to Policy ¶ 4(a)(i) via its registration of the mark with the USPTO.  See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).

 

The <nationaalcarrental.com> domain name adds the letter “a” and the generic top-level domain (“gTLD”) “.com” to Complainant’s NATIONAL CAR RENTAL mark.  The Panel finds that these changes are insufficient to distinguish the disputed domain name from Complainant’s mark and, therefore, the <nationaalcarrental.com> domain name is confusingly similar to the NATIONAL CAR RENTAL mark under Policy ¶ 4(a)(i).  See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also 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).”).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Pursuant to Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no rights or legitimate interests in the <nationaalcarrental.com> domain name.  If the Panel finds that Complainant’s allegations establish such a prima facie case, the burden shifts to Respondent to show that it does indeed have rights or legitimate interests in the disputed domain name pursuant to the guidelines in Policy ¶ 4(c).  The Panel finds that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  Since no response was submitted in this case, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name.  However, the Panel will still examine the record in consideration of the factors listed in Policy ¶ 4(c).  See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); 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 Panel finds no evidence in the record suggesting that Respondent is commonly known by the <nationaalcarrental.com> domain name.  Respondent has no license or agreement with Complainant authorizing Respondent to use the NATIONAL CAR RENTAL mark, and the WHOIS information identifies Respondent as “R.A.M.P Services.”  Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).

 

Respondent is using the disputed domain name to resolve to a website containing links to third-party websites, some of which directly compete with Complainant’s rental car business.  Accordingly, the Panel infers that Respondent receives click-through fees for displaying these hyperlinks.  The Panel finds that this is a diversion of Internet users for Respondent’s commercial benefit, and is therefore not 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 ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).

 

Additionally, typosquatting occurs when a respondent purposefully includes typographical errors in the mark portion of a disputed domain name to divert Internet users who commit those typographical errors.  The <nationaalcarrental.com> domain name takes advantage of Internet users who mistype Complainant’s NATIONAL CAR RENTAL mark.  The Panel finds that Respondent engaged in typosquatting by misspelling Complainant’s mark in the disputed domain name.  This is further evidence that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of the complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

The <nationaalcarrental.com> domain name, which was registered on October 7, 2007, resolves to a website containing links to third-party websites, some of which directly compete with Complainant.  The Panel finds Respondent is using the <nationaalcarrental.com> domain name to disrupt Complainant’s business by diverting Internet users to Complainant’s competitors.  This is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).

 

Respondent is using the <nationaalcarrental.com> domain name to display links to sites that are related to and in direct competition with Complainant’s business.  The Panel infers that Respondent receives either pay-per-click or advertising fees for these advertisements.  Since the disputed domain name is confusingly similar to Complainant’s mark, Internet users are likely to be confused as to Complainant’s affiliation with, or sponsorship of, the disputed domain name and resolving website.  The Panel finds this is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s registration of an infringing domain name to redirect Internet users to banner advertisements constituted bad faith use of the domain name).

 

The Panel finds that Respondent’s engagement in typosquatting is evidence that Respondent registered and is using the <nationaalcarrental.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).  See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <nationaalcarrental.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Sandra J. Franklin, Panelist

Dated:  August 31, 2009

 

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