Vanguard
Trademark Holdings
Claim Number: FA1007001333488
Complainant is Vanguard
Trademark Holdings USA LLC (“Complainant”), represented by Renee Reuter, of Vanguard Trademark
Holdings USA LLC,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com>, registered with Moniker Online Services, 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 2, 2010.
On July 6, 2010, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names is/are registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the names. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 July 13, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 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@natoinalcar.com, postmaster@nationalcrarental.com, postmaster@nationalcarretal.com, postmaster@natioalcar.com, and postmaster@ntionalcar.com by e-mail. Also on July 13, 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 August 11, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names are confusingly similar to Complainant’s NATIONAL CAR RENTAL mark.
2. Respondent does not have any rights or legitimate interests in the <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names.
3. Respondent registered and used the <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vanguard Trademark Holdings USA LLC, provides car rental services throughout the world under its NATIONAL CAR RENTAL mark. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its NATIONAL CAR RENTAL mark (e.g., Reg. No. 1,540,913 issued May 23, 1989).
Respondent, Taranga Services Pty Ltd / Domain Admin, registered the <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names no earlier than February 4, 2004. The <natoinalcar.com> domain name resolves to a website that features a link to an online website that sells cars. The <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names resolve to websites that contain hyperlinks to Complainant’s competitors in the car rental 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.
Complainant holds multiple trademark registrations with the USPTO for its NATIONAL CAR RENTAL mark (e.g., Reg. No. 1,540,913 issued May 23, 1989). The Panel finds Complainant has established rights in its NATIONAL CAR RENTAL mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant claims Respondent’s <natoinalcar.com>, <nationalcrarental.com>,
<nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com>
domain names are confusingly similar to Complainant’s NATIONAL CAR RENTAL mark. The disputed domain names remove the spaces
separating the terms of Complainant’s mark.
The <natoinalcar.com>, <natioalcar.com>, and <ntionalcar.com>
domain names remove the term “rental” from Complainant’s mark. All of the disputed domain names contain
common misspellings of Complainant’s mark by removing or transposing letters
and adding the generic top-level domain (“gTLD”) “.com.” The Panel determines that the removal of
spaces from Complainant’s mark, removal of a term from Complainant’s mark, the
removal of a letter, the transposing of two letters, and the addition of a gTLD
all fail to adequately distinguish the disputed domain name from Complainant’s
mark. See Bond & Co. Jewelers, Inc. v.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a 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 <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Complainant argues
that Respondent is not commonly known by the <natoinalcar.com>, <nationalcrarental.com>,
<nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com>
domain names. The WHOIS information
identifies the registrant of the domain names as “Taranga Services Pty Ltd /
Domain Admin,” which the Panel finds is not similar to the disputed domain
names. Complainant asserts that Respondent is not licensed or authorized to
use Complainant’s NATIONAL CAR RENTAL mark.
Respondent has failed to respond to Complainant’s assertions and has
failed to present any evidence that suggests that Respondent is commonly known
by the disputed domain names.
Consequently, the Panel finds Respondent is not commonly known by the
disputed domain names pursuant to 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).
Respondent’s <natoinalcar.com>
domain name resolves to a website with a link to <autotrader.com>, which
features car sales. While the hyperlink
to <autotrader.com> is related to cars just as Complainant’s business is
related to cars, Complainant and the third-party, AutoTrader, are not
competitors because Complainant rents cars whereas <autotrader.com>
features car sales. For purposes of
Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), the hyperlink to
<autotrader.com> website is an unrelated hyperlink. The Panel finds Respondent’s use of the
disputed domain name for this purpose does not constitute a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain
name under Policy ¶ 4(c)(iii). See Constellation Wines
Respondent’s <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names resolve to websites that contain hyperlinks to Complainant’s competitors in the car rental industry. The Panel finds Respondent’s use of the disputed domain names for this purpose is not 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). See Skyhawke Techs., 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 Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (holding that the respondent’s use of the contested domain name to maintain a commercial website with links to the products and services of the complainant’s competitors did not represent 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)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names to resolve to websites that feature hyperlinks to Complainant’s competitors in the car rental industry. Internet users interested in Complainant may instead purchase similar rental car services from a competitor of Complainant because of Respondent’s use of the confusingly similar disputed domain names. The Panel finds Respondent’s use of the disputed domain names disrupts Complainant’s rental car business, which constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
The Panel infers
Respondent receives click-through fees from the hyperlinks contained on the
websites resolving from the <natoinalcar.com>, <nationalcrarental.com>,
<nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com>
domain names. Internet users will likely
become confused as to Complainant’s sponsorship of the disputed domain names
and resolving websites. Thus, the Panel
finds Respondent’s use of the disputed domain names constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See
The Panel finds 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 <natoinalcar.com>, <nationalcrarental.com>, <nationalcarretal.com>, <natioalcar.com>, and <ntionalcar.com> domain names be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: August 21, 2010
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