Park ‘N Fly Service Corporation v. Ramped Up Media
Claim Number: FA1212001473968
Complainant is Park ‘N Fly Service Corporation (“Complainant”), represented by Joel R. Feldman of Greenberg Traurig, LLP, Georgia, USA. Respondent is Ramped Up Media (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <simpleparkandfly.com>, registered with GoDaddy.com, LLC.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 3, 2012; the National Arbitration Forum received payment on December 3, 2012.
On December 5, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <simpleparkandfly.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 10, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 31, 2012 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@simpleparkandfly.com. Also on December 10, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 January 8, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the PARK ‘N FLY mark. Respondent’s domain name is confusingly similar to Complainant’s PARK ‘N FLY mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <simpleparkandfly.com> domain name, and that Respondent registered and uses the domain name in bad faith.
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."
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.
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.”).
Complainant, Park ‘N Fly Service Corporation, asserts that it was founded in 1967 as the first off-airport parking company specifically geared towards business travelers. Complainant contends that it now operates 17 parking facilities under the PARK ‘N FLY mark in 16 markets across the United States, including California, Florida, Texas, and Ohio. Complainant asserts and shows that it owns trademark registrations with the USPTO for the PARK ‘N FLY mark (Reg. No. 1,111,956, registered January 23, 1979). Complainant’s registration of the PARK ‘N FLY mark with the USPTO is sufficient to establish its rights in the mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”).
Complainant argues that Respondent’s <simpleparkandfly.com> domain name is virtually identical to Complainant’s mark as it substitutes “AND” for “’N.” Complainant contends that “AND” and “’N” are both used to conjoin two words and are language equivalents, and are therefore interchangeable. Respondent’s substitution of “AND” for “’N” does not distinguish Respondent’s disputed domain name under Policy ¶ 4(a)(i). See Am. Online, Inc. v. Triple E Holdings Ltd., FA 281584 (Nat. Arb. Forum July 15, 2004) (“Words that are spelled differently but are phonetically similar do not negate the confusing similarity of Respondent’s domain name pursuant to Policy ¶ 4(a)(i).”). Complainant asserts that Respondent adds the generic term “simple” to the disputed domain name. The addition of a generic term does not eliminate confusing similarity between Respondent’s disputed domain name and Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Sutton Group Fin. Servs. Ltd. v. Rodger, D2005-0126 (WIPO June 27, 2005) (finding that the domain name <suttonpromo.com> is confusingly similar to the SUTTON mark because the addition of descriptive or non-distinctive elements to the distinctive element in a domain name is immaterial to the analysis under Policy ¶ 4(a)(i)). Complainant also argues that Respondent adds the gTLD “.com” to the disputed domain name. Respondent eliminates the spaces between “park,” “and,” and “fly” in the disputed domain name. The addition of a gTLD and removal of spaces does not differentiate Respondent’s disputed domain name from Complainant’s mark under Policy ¶ 4(a)(i). See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”). Therefore, the Panel determines that Respondent’s <simpleparkandfly.com> domain name is confusingly similar to Complainant’s PARK ‘N FLY mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that there is no evidence within the WHOIS information that Respondent is commonly known as “Simple Park and Fly” or “simpleparkandfly.com.” The WHOIS information identifies “Ramped Up Media” as the registrant of the disputed domain name. Respondent fails to submit additional evidence showing that it is commonly known by the disputed domain name. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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).
Complainant contends that Respondent is using the disputed domain name to advertise Respondent’s own airport parking and airport parking reservations services. Complainant argues that Respondent is Complainant’s competitor. Complainant asserts that Respondent is using the disputed domain name in connection with a commercial endeavor. The Panel finds that Respondent’s use of the disputed domain name to advertise its own airport parking reservation service is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent is directing traffic away from Complainant’s official websites, disrupting Complainant’s business. Respondent’s disputed domain name connects to a website which provides services that directly compete with Complainant’s services. Respondent’s use of the disputed domain name to direct Internet traffic away from Complainant disrupts Complainant’s business, evidencing bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See 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 asserts that Respondent is using the disputed domain name to intentionally attempt to attract Internet users to its website by creating a likelihood of confusion with Complainant’s PARK ‘N FLY mark. Respondent’s disputed domain name connects to a website which advertises Respondent’s own airport parking reservations services. Respondent’s use of the disputed domain name to advertise its own airport parking reservations services constitutes attraction for commercial gain, showing bad faith use and registration of the domain name under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <simpleparkandfly.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 21, 2013
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