Europcar
International v. Patrick Ory
Claim
Number: FA0301000142133
PARTIES
Complainant is
Europcar International, Saint Quentin en Yvelines, FRANCE, (“Complainant”). Respondent is Patrick Ory,
Cancun, Mexico (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The
domain name at issue is <europe-car.com>, registered with Computer
Services Langenbach Gmbh Dba Joker.com.
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.
The
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on January 17, 2003; the Forum received a hard copy of the
Complaint on January 20, 2003.
On
January 20, 2003, Computer Services Langenbach Gmbh Dba Joker.com confirmed by
e-mail to the Forum that the domain name <europe-car.com> is
registered with Computer Services Langenbach Gmbh Dba Joker.com and that
Respondent is the current registrant of the name. Computer Services Langenbach Gmbh Dba Joker.com has verified that
Respondent is bound by the Computer Services Langenbach Gmbh Dba Joker.com 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
January 21, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of February 10, 2003 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 postmaster@europe-car.com by
e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
February 17, 2003, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed the Honorable Charles K.
McCotter, Jr. (Ret.) as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the 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 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 <europe-car.com>
domain name is confusingly similar to Complainant’s EUROPCAR mark.
2. Respondent does not have any rights or
legitimate interests in the <europe-car.com> domain name.
3. Respondent registered and used the <europe-car.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
holds numerous international trademark registrations, including the EUROPCAR
mark. Complainant has used the marks in commerce in relation to its international
car rental company since 1949.
Complainant also operates a website at <europcar.com>, which can
be reached via several domain names registered to Complainant.
Respondent
registered the <europe-car.com> domain name on April 25, 2001. The
website at the disputed domain name offers various travel-related subjects,
including car rental services.
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.
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
has established rights in the EUROPCAR mark through international trademark
registration and continuous use of the mark in commerce since 1949. Both of these events predate Respondent’s
registration of the disputed domain name.
Respondent’s <europe-car.com>
domain name is confusingly similar to Complainant’s EUROPCAR mark because the
domain name simply inserts a letter “e” and a hyphen in the middle of
Complainant’s mark. The addition of the
letter and the punctuation mark does not prevent Complainant’s mark from being
the dominant feature of the disputed domain name. See Am. Online Inc. v. Chinese ICQ Network,
D2000-0808 (WIPO Aug. 31, 2000) (finding that the addition of the numeral 4 in
the domain name <4icq.com> does nothing to deflect the impact on the
viewer of the mark ICQ and is therefore confusingly similar); see also Teleplace, Inc. v. De Oliveira, FA
95835 (Nat. Arb. Forum Dec. 4, 2000) (finding that the domain names
<teleplace.com>, <tele-place.com>, and <theteleplace.com> are
confusingly similar to Complainant’s TELEPLACE trademark).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Respondent has
failed to submit a Response in this proceeding. Thus, the Panel is permitted to
accept all reasonable allegations and inferences in the Complaint as true. See Vertical Solutions Mgmt., Inc. v.
webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding
that Respondent’s failure to respond allows all reasonable inferences of fact
in the allegations of Complainant to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a
presumption that Complainant’s allegations are true unless clearly contradicted
by the evidence).
Furthermore,
based on Respondent’s failure to respond, the Panel may presume that Respondent
lacks any rights or legitimate interests in the <europe-car.com>
domain name. See Do The Hustle, LLC
v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once
Complainant asserts that Respondent has no rights or legitimate interests with
respect to the domain, the burden shifts to Respondent to provide credible
evidence that substantiates its claim of rights and legitimate interests in the
domain name); see also Geocities
v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent
has no rights or legitimate interests in the domain name because the Respondent
never submitted a response nor provided the Panel with evidence to suggest
otherwise).
In response to
Complainant’s offer to avoid an arbitral proceeding, Respondent offered to
transfer the disputed domain name to Complainant in consideration of a profit.
Respondent’s conduct purporting to sell the domain name suggests Respondent is
neither using the domain name in connection with a bona fide offering of goods
or services pursuant to Policy 4(c)(i), nor making a legitimate noncommercial
or fair use of the domain name pursuant to Policy 4(c)(iii). See Skipton Bldg. Soc’y v. Colman, D2000-1217 (WIPO Dec. 1, 2000)
(finding no rights in a domain name where Respondent offered the infringing
domain name for sale and the evidence suggests that anyone approaching this
domain name through the world wide web would be "misleadingly"
diverted to other sites); see also
Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000)
(finding that rights or legitimate interests do not exist when one holds a
domain name primarily for the purpose of marketing it to the owner of a
corresponding trademark).
Respondent has
not presented any evidence and there is no proof to establish that Respondent
is commonly known as EUROPE-CAR or <europe-car.com>. Therefore, Respondent has failed to
establish that it has rights or legitimate interests in the <europe-car.com>
domain name. See
Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23,
2001) (finding that Respondent does not have rights in a domain name when
Respondent is not known by the mark); see also Charles Jourdan Holding AG v. AAIM,
D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests
where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior
rights in the domain name precede Respondent’s registration; (3) Respondent is
not commonly known by the domain name in question).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s
offer to transfer the disputed domain name for valuable consideration
demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(b)(i). See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679
(Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered
domain names for sale); see also
Banca Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000)
(finding bad faith where the Respondent offered the domain names for sale).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under ICANN Policy, the Panel concludes
that relief shall be GRANTED.
Accordingly, it
is Ordered that the <europe-car.com> domain name be TRANSFERRED
from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr.
(Ret.), Panelist
Dated:
February 24, 2003
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