Ed Martin, Inc. and Ed Martin Scatterfield, Inc. d/b/a Ed Martin Toyota v. Standard Bearer Enterprises Limited a/k/a Standard Bearer
Claim Number: FA0911001296223
Complainant is Ed Martin, Inc. and Ed Martin Scatterfield, Inc. d/b/a Ed Martin
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <edmartintoyota.com>, registered with Atomicdomainnames.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 9, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 29, 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@edmartintoyota.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 <edmartintoyota.com> domain name is confusingly similar to Complainant’s ED MARTIN mark.
2. Respondent does not have any rights or legitimate interests in the <edmartintoyota.com> domain name.
3. Respondent registered and used the <edmartintoyota.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ed Martin, Inc., owns
and operates numerous automobile dealerships throughout central
Respondent registered the <edmartintoyota.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.
Respondent registered the <edmartintoyota.com> domain name on
Complainant obtained a trademark registration for the ED
MARTIN mark with the USPTO (Reg. No. 3,244,302 issued
Complainant argues that Respondent’s <edmartintoyota.com> domain name is confusingly
similar to Complainant’s ED MARTIN mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains
Complainant’s mark in its entirety, adds the term “
The Panel finds that 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 that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant contends that Respondent is neither commonly
known by nor licensed to register the disputed domain name.
The Panel finds the registrant’s WHOIS information demonstrates that
Respondent is not commonly known by the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii),
Respondent lacks rights and legitimate interests in the disputed domain
name. See Instron Corp. v. Kaner, FA
768859 (Nat. Arb. Forum Sept. 21, 2006) (finding
that the respondent was not commonly known by the <shoredurometer.com>
and <shoredurometers.com> domain names because the WHOIS information
listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the
registrant of the disputed domain names and there was no other evidence in the
record to suggest that the respondent was commonly known by the domain names in
dispute); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
Respondent’s disputed
domain name resolves to a website featuring advertisements and links relating
to Complainant’s competitors in the automobile industry. The Panel may
infer that Respondent profits through the generation of click-through fees from
the links to Complainant’s competitors. Therefore, the Panel finds that
Respondent’s use of the disputed domain name is not in connection with a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use of the disputed domain name under
Policy ¶ 4(c)(iii). See 24 Hour Fitness USA, Inc. v.
24HourNames.com-Quality Domains For
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website featuring links to Complainant’s competitors in the automobile industry. The confusingly similar disputed domain name likely attracts Internet users that are attempting to access Complainant’s website. Those Internet users are unknowingly redirected to the websites of Complainant’s competitors. Therefore, the Panel finds that Respondent’s use of the disputed domain name constitutes a disruption of Complainant’s business, which is evidence of bad faith registration and use under 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 is using the disputed domain name to intentionally divert
Internet users to the associated website, which displays third-party links to
competing websites. In cases such as
this, the Panel presumes that Respondent is collecting click-through fees and
attempting to profit by creating a likelihood of confusion between
Complainant’s ED MARTIN mark and the confusingly similar disputed domain name. The Panel finds that Respondent’s use of the
disputed domain name is further evidence of 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
The Panel finds that 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 <edmartintoyota.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin Panelist
Justice, Supreme Court, NY (Ret.)
Dated: January 20, 2010
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