Vanguard Trademark Holdings
Claim Number: FA1008001339544
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 <alamopanama.net>, registered with GoDaddy.com, Inc.
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 August 6, 2010.
On August 9, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <alamopanama.net> 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 August 11, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 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@alamopanama.net by e-mail. Also on August 11, 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 September 13, 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 (the "Rules") "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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1.
Respondent’s <alamopanama.net>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <alamopanama.net> domain name.
3. Respondent registered and used the <alamopanama.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vanguard
Trademark Holdings USA LLC, is the owner of the
Respondent, Edmundo Gonzalez,
registered the <alamopanama.net> domain name on December
22, 2009. Respondent’s disputed domain
name resolves to Respondent’s automobile rental business website located in
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.
The Panel finds that Complainant has demonstrated rights in
its ALAMO mark under Policy ¶ 4(a)(i) through its multiple trademark
registrations with the USPTO (e.g., Reg. No. 1,097,722 issued July 25,
1978) and the RPMCI (e.g., Reg. No. 45,224 issued July 29, 1988). See Miller
Brewing
Complainant alleges that the disputed domain name is
confusingly similar to its
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights and legitimate interests in the <alamopanama.net> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden of proof shifts to Respondent to prove that it has rights or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii). 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.”). 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 and legitimate interests in the <alamopanama.net> domain name. See 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). However, the Panel will examine the record to determine whether Respondent has rights and legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by
the disputed domain name or Complainant’s
Complainant further argues that Respondent is not using the
disputed domain name in connection with a bona
fide offering of goods or services or a legitimate noncommercial or fair
use. Complainant contends that
Respondent is using the disputed domain name to offer competing automobile
rental services in
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <alamopanama.net> domain name to market and offer competing automobile rental services to Internet users seeking Complainant’s company and services. The Panel infers that such use results in a disruption of Complainant’s business because inevitably some Internet users will purchase goods and services from Respondent rather than Complainant. Therefore, the Panel finds that Respondent’s use of the disputed domain name is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”).
Complainant argues that Respondent is using the confusingly
similar domain name to attract Internet users who are seeking Complainant’s
services to the competing services of Respondent’s business for commercial
gain. Considering that Respondent’s use
of the <alamopanama.net>
domain name is to market its competing automobile rental services the Panel
finds that Respondent has attempted to attract Internet users to its website
for commercial gain, and that such use is evidence of bad faith under Policy ¶
4(b)(iv). See Computerized Sec. Sys.,
Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that
the respondent’s use of the <saflock.com> domain name to offer goods
competing with the complainant’s illustrates the respondent’s bad faith
registration and use of the domain name, evidence of bad faith registration and
use pursuant to Policy ¶ 4(b)(iv)); see
also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14,
2001) (finding bad faith where the respondent used the domain name, for
commercial gain, to intentionally attract users to a direct competitor of the
complainant).
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 <alamopanama.net> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: September 16, 2010
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