Vanguard
Trademark Holdings
Claim Number: FA1007001333300
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 <natioinalcarrental.com>, registered with Above.com Pty 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 1, 2010.
On July 5, 2010, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <natioinalcarrental.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty 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 7, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 27, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@natioinalcarrental.com. Also on July 7, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 31, 2010 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbtration 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 <natioinalcarrental.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 <natioinalcarrental.com> domain name.
3. Respondent registered and used the <natioinalcarrental.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vanguard Trademark Holdings USA LLC, holds multiple trademark registrations for its NATIONAL CAR RENTAL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,540,913 issued May 23, 1989) in connection with automobile rental and leasing services.
Respondent, Above.com Domain Privacy, registered the disputed domain name on August 7, 2008. The disputed domain name resolves to a website with links to Complainant’s website and websites of competing rental car companies.
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.
Complainant asserts rights in its NATIONAL CAR RENTAL mark based on its holding of multiple trademark registrations with the USPTO (e.g., Reg. No. 1,540,913 issued May 23, 1989). The Panel finds that Complainant’s multiple registrations for its NATIONAL CAR RENTAL mark with the USPTO is evidence of Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Complainant argues that Respondent’s <natioinalcarrental.com>
domain name is confusingly similar
to Complainant’s NATIONAL CAR RENTAL mark.
Respondent’s disputed domain name merely adds an additional letter “i”
along with the generic top-level domain (“gTLD”) “.com” to the entirety of
Complainant’s mark. The Panel finds that
the addition of a single letter and a gTLD does not distinguish a disputed
domain name from a mark. 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 Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10,
2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does
not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel finds that, pursuant to
Policy ¶ 4(a)(i), Respondent’s <natioinalcarrental.com>
domain name is confusingly similar
to Complainant’s NATIONAL RENTAL CAR mark.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks both rights and legitimate interests in the disputed domain name. Policy ¶ 4(a)(ii) requires that Complainant first make a prima facie case in support of its allegations and the Panel here finds that Complainant has established a prima facie case. A showing that Complainant has satisfied its burden of proof requires that the burden then shift to Respondent to provide evidence that it does have rights and legitimate interests in the disputed domain name. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). The Panel further finds that based on Respondent’s failure to respond to these proceedings, Respondent has not met its burden and the Panel takes as true the allegations put forth by Complainant. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel will examine the entire record in light of the Policy ¶ 4(c) factors to determine whether Respondent actually has any rights or legitimate interests in the disputed domain name.
The WHOIS information for the <natioinalcarrental.com> domain name indicates that the registrant is “Above.com Domain Privacy.” This information, coupled with Complainant’s assertion that it has not licensed or otherwise permitted Respondent to use its NATIONAL CAR RENTAL mark, leads the Panel to conclude that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(a)(i). 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 Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant argues that Respondent’s disputed domain name resolves to a website with links to Complainant’s website and websites of competing rental car companies. Complainant further argues that Respondent likely receives click-through fees based on the links displayed on its resolving website. The Panel finds that Respondent’s attempt to generate click-through revenue from links that compete with Complainant is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry); see also 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).
The Panel finds that Respondent’s disputed domain name which
incorporates a common misspelling of Complainant’s mark achieved by merely
adding a single letter to Complainant’s NATIONAL CAR RENTAL mark is evidence of
Respondent’s typosquatting which the Panel finds is further proof that
Respondent lacks rights and legitimate interests in the disputed domain name
under Policy ¶ 4(a)(ii). See Microsoft Corp. v.
Domain Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent has registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iii). Respondent’s disputed domain name features links to car rental services in competition with Complainant. The Panel therefore finds that Respondent registered and is using the disputed domain to detract Internet users from Complainant’s own website and that Internet users may purchase products or services from one of Complainant’s competitors rather than Complainant as a result. See 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)(iii) 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); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Complainant asserts that Respondent’s registration and use of the disputed domain name to display links from which Respondent presumably receives click-through fees for Respondent’s commercial gain is evidence of Respondent’s bad faith. Complainant argues that Internet users who mistakenly type <natioinalcarrental.com> in an attempt to reach Complainant’s website resolving from the <nationalcarrental.com> domain name may inevitably click on the displayed links. The Panel finds that such use is an attempt by Respondent to intentionally attract Internet users for Respondent’s own commercial gain and is thus evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See 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)); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
As established previously, Respondent has engaged in the
practice of typosquatting by registering a disputed domain name that
incorporates a common misspelling of Complainant’s mark. The Panel concludes that typosquatting is
itself evidence of Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the
respondent’s registration and use of the <nextell.com> domain name was in
bad faith because the domain name epitomized typosquatting in its purest form);
see also Microsoft Corp. v.
Domain Registration
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 <natioinalcarrental.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon,: Ralph Yachnin, Panelist
Justice, Supreme Court,
Dated: August 4, 2010
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