Vanguard Trademark Holdings
Claim Number: FA1002001306692
Complainant is Vanguard Trademark Holdings USA LLC (“Complainant”), represented by Renee
Reuter, of Vanguard Trademark Holdings USA LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alamorentcars.com>, registered with Godaddy.com, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 4, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 8, 2010.
On February 8, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <alamorentcars.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 12, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 4, 2010 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <alamorentcars.com> domain name.
3. Respondent registered and used the <alamorentcars.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vanguard Trademark Holdings USA LLC, the owner
Respondent registered the <alamorentcars.com> domain name on November 21, 2009. Respondent’s disputed domain name resolves to a website that displays third-party links to websites offering similar value-priced car rentals in competition with Complainant.
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 owns numerous trademark registrations with the
USPTO for its
Complainant argues that
Respondent’s <alamorentcars.com> domain name is confusingly
similar to its ALAMO mark because it contains the ALAMO mark in its entirety,
adds the descriptive term “rent cars,” and adds the generic top level domain
(“gTLD”) “.com.” Complainant contends
that the additions do not distinguish the disputed domain name from its mark,
rather the descriptive term “rent cars” describes Complainant’s Alamo Rent A
Car business. The Panel finds that the
disputed domain name containing Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights or legitimate interests in the <alamorentcars.com> domain name. Complainant is required to make a prima facie case in support of these allegations. Once the Complainant has produced a prima facie case the burden shifts to Respondent to show it does have a right or legitimate interest in the disputed domain name. 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 Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)). The Panel finds that Complainant has established a prima facie case. Due to the Respondent’s failure to respond to these proceedings the Panel may assume Respondent does not have any right or legitimate interest in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).
Complainant argues that Respondent’s disputed domain name resolves to a website that displays third-party links to competitors of Complainant in the car rental business. Complainant further argues that Respondent’s use of the disputed domain name to divert Internet users to the websites of its competitors, presumably to collect pay-per-click fees, does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use. The Panel finds that Respondent’s intentional diversion of Internet users seeking Complainant’s website to a website displaying links to Complainant’s competitors, presumably for financial gain, does not constitute of 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). See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name); see also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”).
Complainant further contends that
Respondent is not commonly known by the <alamorentcars.com> domain name, nor has Complainant
granted respondent permission to use its
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent has registered and used the disputed domain name in bad faith by intentionally diverting Internet users to the websites of its competitors. Complainant argues that Respondent’s diversion of Internet users seeking Complainant’s website and services is a disruption to its business of renting cars. The Panel finds that Respondent is disrupting Complainant’s business by taking advantage of Internet users attempting to find Complainant’s car rental business by using the confusingly similar <alamorentcars.com> domain name, and this use 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 Am. Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site. The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant alleges that
Respondent is using the disputed domain name to intentionally attract Internet
users to Respondent’s website which displays third-party links to competing
businesses and websites. In this case
the Panel presumes that Respondent is collecting pay-per-click fees and is
thereby attempting to profit by creating a likelihood of confusion between
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 <alamorentcars.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 24, 2010
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