national arbitration forum

 

DECISION

 

Brink's Network Incorporated v. Brinks Car Rental / Asheley Alexander Grant

Claim Number: FA1008001341093

 

PARTIES

Complainant is Brink's Network Incorporated (“Complainant”), represented by Mary L. Kevlin, of Cowan, Liebowitz & Latman, P.C., New York, USA.  Respondent is Brinks Car Rental / Asheley Alexander Grant (“Respondent”), St. Maarten.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <brinkscarrental.com>, registered with Enom, Inc.

 

PANEL

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.

 

James A. Carmody, Esq., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on August 16, 2010.

 

On August 16, 2010, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <brinkscarrental.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name.  Enom, Inc. has verified that Respondent is bound by the Enom, 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 18, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 7, 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@brinkscarrental.com by e-mail.  Also on August 18, 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 20, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <brinkscarrental.com> domain name is confusingly similar to Complainant’s BRINK’S mark.

 

2.      Respondent does not have any rights or legitimate interests in the <brinkscarrental.com> domain name.

 

3.      Respondent registered and used the <brinkscarrental.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Brink's Network Incorporated, is a worldwide business and security transportation company that serves banks, retailers, governments, mints, diamantaires, and jewelers.  Complainant owns multiple trademark registrations with the United States Patent and Trademark Office ("USPTO") for its BRINK’S mark (e.g., Reg. No. 529,622 issued August 22, 1950).  Complainant also owns trademark registrations with the Netherlands Antilles Bureau for Intellectual Property (“NABIP”) for its BRINK’S mark (e.g., Reg. No. 00011 issued March 1, 2001). 

 

Respondent, Brinks Car Rental / Asheley Alexander Grant, registered the <brinkscarrental.com> domain name on December 29, 2004.  Respondent’s disputed domain name resolves to a website that advertises car rental services on the island of St. Maarten. 

 

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has submitted sufficient evidence to establish rights in its BRINK’S mark under Policy ¶ 4(a)(i) through its trademark registrations with the USPTO (e.g., Reg. No. 529,622 issued August 22, 1950) and NABIP (e.g., Reg. No. 00011 issued March 1, 2001).  See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).

 

Complainant contends that the <brinkscarrental.com> domain name is confusingly similar to Complainant’s BRINK’S mark.  Complainant notes that the domain name contains its entire BRINK’S mark, absent the apostrophe, and adds the descriptive terms “car rental” as well as the generic top-level domain (“gTLD”) “.com.”  Complainant argues that such changes and additions to its mark are not sufficient to render the domain name distinct from the BRINK’S mark.  The Panel agrees and finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See LOreal USA Creative Inc v. Syncopate.com – Smart Names for Startups, FA 203944 (Nat. Arb. Forum Dec. 8, 2003) (finding that the omission of an apostrophe did not significantly distinguish the domain name from the mark); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.     

 

Rights or Legitimate Interests

 

Complainant has contended that Respondent does not have rights and legitimate interests in the <brinkscarrental.com> 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 and legitimate interests in the disputed domain name.  See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint).  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).

 

Complainant asserts that Respondent is not commonly known by the <brinkscarrental.com> domain name.  Complainant alleges that Respondent is not authorized or licensed to use Complainant’s BRINK’S mark.  The WHOIS information identifies the domain name registrant as “Brinks Car Rental / Asheley Alexander Grant,” but Respondent has failed to come forward with any further evidence indicating that it is commonly known by the disputed domain name.  Respondent has failed to respond to these allegations and has failed to present evidence that would suggest that Respondent is commonly known by the disputed domain name.  Therefore, the Panel concludes that although Respondent appears to be commonly known by the disputed domain, that without affirmative evidence indicating otherwise Respondent is not commonly known by the <brinkscarrental.com> domain name pursuant to Policy ¶ 4(c)(ii).  See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name).

 

Complainant contends that Respondent’s disputed domain name resolves to a website that advertises car rental services on the island of St. Maarten.  Complainant argues that such use of an infringing domain name is evidence of Complainant’s lack of rights and legitimate interests in the domain name.  The Panel agrees and finds that Respondent’s use of the disputed domain name to offer car rental services for commercial gain is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. 

 

Registration and Use in Bad Faith

 

Complainant alleges that Respondent is using the confusingly similar <brinkscarrental.com> domain name to direct Internet traffic to Respondent’s car rental website for commercial gain.  Complainant notes that Respondent uses a logo similar to Complainant’s logo within its mark on the website resolving from the disputed domain name and that such use creates confusion for Internet users as to the source and affiliation of the website.  Therefore, the Panel finds that Respondent’s use of the disputed domain name to intentionally attract Internet users to Respondent’s car rental website is evidence of bad faith registration and use under Policy ¶ 4(b)(iv).  See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to the respondent’s website); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <brinkscarrental.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

James A. Carmody, Esq., Panelist

Dated:  September 23, 2010

 

 

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