national arbitration forum

 

DECISION

 

Dollar Thrifty Automotive Group, Inc. v. Above.com Legal

Claim Number: FA1303001491857

 

PARTIES

Complainant is Dollar Thrifty Automotive Group, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Above.com Legal (“Respondent”), Australia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thrrifty.com>, registered with Above.Com Pty Ltd.

 

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 March 27, 2013; the National Arbitration Forum received payment on March 27, 2013.

 

On March 27, 2013; Apr 03, 2013, Above.Com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <thrrifty.com> domain name is registered with Above.Com Pty Ltd and that Respondent is the current registrant of the name.  Above.Com Pty Ltd has verified that Respondent is bound by the Above.Com Pty Ltd 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 April 9, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 29, 2013 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@thrrifty.com.  Also on April 9, 2013, 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 May 3, 2013, 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 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.

 

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 <thrrifty.com> domain name, the domain name at issue, is confusingly similar to Complainant’s THRIFTY mark.

 

2.    Respondent does not have any rights or legitimate interests in the domain name at issue.

 

3.    Respondent registered and used the domain name at issue in bad faith.

 

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

 

FINDINGS

Complainant is the owner of the United States Patent and Trademark Office (“USPTO”) registrations for the THRIFTY mark (e.g., Reg. No. 2,247,742 registered Feb. 13, 2001).  The THRIFTY mark is used as a motor vehicle rental brand that mainly serves value conscious travelers.  The <thrrifty.com> domain name is confusingly similar to the THRIFTY mark.  The second-level portion of the disputed domain name is most central to a comparison between the <thrrifty.com> domain name and the THRIFTY mark because the addition of a generic top-level domain (“gTLD”) is irrelevant to a Policy ¶ 4(a)(i) analysis.

The disputed domain name deviates from the THRIFTY mark merely by the addition of one extra letter. 

 

Respondent has never been commonly known by the <thrrifty.com> domain name. The WHOIS record demonstrates that the Respondent is known as an entity other than the THRIFTY mark. Additionally, Respondent has not been licensed, authorized, or otherwise permitted by Complainant to use the THRIFTY mark in a domain name.  Respondent is not using the <thrrifty.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. The disputed domain name is used to direct unsuspecting Internet users to a website featuring links to competing third-party websites.  Respondent’s registration and use of the <thrrifty.com> domain name is disruptive to Complainant’s business. The <thrrifty.com> domain name resolves to a website displaying links to competing third-party websites. This use is sure to divert potential customers of Complainant to third parties offering similar services, decreasing Complainant’s anticipated consumer base.  Respondent registered and uses the <thrrifty.com> domain name as a commercial click-through website, connecting Internet users to a website containing links to competing third-party websites. Respondent makes a point to use the THRIFTY mark to achieve a wrongful competitive advantage. Respondent’s registration of the domain name at issue is a classic example of typosquatting and demonstrates bad faith. The practice of typosquatting is designed to take advantage of Internet users’ typographical errors.  Respondent registered the <thrrifty.com> domain name on March 24, 2009.

 

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."

 

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.”).

 

Identical and/or Confusingly Similar

By virtue of Complainant’s federal trademark registrations, it has rights in the THRIFTY mark. Complainant is the owner of several USPTO registrations for the THRIFTY mark (e.g., Reg. No. 2,247,742 registered Feb. 13, 2001), which is used as a motor vehicle rental brand that mainly serves value conscious travelers.  Regardless of the location of the parties, the registration of a mark with a trademark authority establishes a presumption of having rights in the mark. See 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); see also 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). Therefore, Complainant has rights in the THRIFTY mark under Policy ¶ 4(a)(i).

 

The <thrrifty.com> domain name is confusingly similar to the THRIFTY mark. The second-level portion of the disputed domain name is most central to a comparison between the <thrrifty.com> domain name and the THRIFTY mark, because the addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. The panel in Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000), agreed, dismissing the addition of a gTLD as irrelevant.  The disputed domain name here deviates from the THRIFTY mark merely by the addition of the letter “r.” The addition of a single letter to a domain name has similarly been found not to negate a finding of confusing similarity. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive). Therefore, the Panel finds that Respondent’s <thrrifty.com> domain name is confusingly similar to Complainant’s THRIFTY mark pursuant to Policy ¶ 4(a)(i).

 

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

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.  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 UDRP ¶ 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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

 

There is no evidence that Respondent has ever been commonly known by the <thrrifty.com> domain name. The WHOIS record demonstrates that the Respondent is known as an entity other than the THRIFTY mark.  The WHOIS record lists “Above.com Legal” as the domain name registrant. Additionally, Respondent has not been licensed, authorized, or otherwise permitted by Complainant to use the THRIFTY mark in a domain name. Therefore, Respondent is not commonly known by the <thrrifty.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).

 

Respondent is not using the <thrrifty.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use.  The disputed domain name is used to direct unsuspecting Internet users to a website featuring links to competing third-party websites.  In Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007), the panel determined that the display of competing links does not fall within the scope of uses granted protection under Policy ¶¶ 4(c)(i) and 4(c)(iii). Therefore, Respondent’s use of the <thrrifty.com> domain name is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.

 

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

 

Registration and Use in Bad Faith

Respondent’s registration and use of the <thrrifty.com> domain name is disruptive to Complainant’s business because the domain resolves to a website displaying links to competing third-party websites.  A screenshot of the resolving website demonstrates that links are included such as “Enterprise Rent-A-Car®” and “Advantage Rental Cars.”  This use is sure to divert potential customers of Complainant to third parties offering similar services, thereby decreasing Complainant’s anticipated consumer base.  The registration and use of a domain name to display links to third-party competing websites is evidence of bad faith. See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)). Therefore, Respondent’s registration and use of the <thrrifty.com> domain name is disruptive to Complainant’s business and thus evidence of bad faith under Policy ¶ 4(b)(iii).

 

Respondent registered and uses the <thrrifty.com> domain name as a commercial click-through website, connecting Internet users to a website containing links to competing third-party websites. Respondent is making a point to use the THRIFTY mark in order to achieve a wrongful competitive advantage. Respondent is intentionally attempting to attract, for commercial gain and in bad faith, Internet users to the <thrrifty.com> domain name by creating a likelihood of confusion under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).

 

Lastly, Respondent’s registration of the <thrrifty.com> domain name is a classic example of typosquatting and demonstrates bad faith.  The practice of typosquatting is designed to take advantage of Internet users’ typographical errors, and the <thrrifty.com> domain name consists of Complainant’s mark supplemented by a single additional letter. Therefore, the Panel finds that Respondent typosquatted the THRIFTY mark to create the <thrrifty.com> domain name and thus demonstrates bad faith pursuant to Policy ¶ 4(a)(iii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark).

 

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

 

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 <thrrifty.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

James A. Carmody, Esq., Panelist

Dated:  May 15, 2013

 

 

 

 

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