DECISION

 

Thrifty, Inc. and Thrifty Rent-a-Car System, Inc. v. Azra Khan

Claim Number:  FA0304000154111

 

PARTIES

Complainant is Thrifty, Inc. and Thrifty Rent-a-Car System, Inc., Tulsa, OK, USA (“Complainant”) represented by Nicole M. Meyer, of Dickinson Wright, PLLC. Respondent is Azra Khan, Rawalpindi, PAKISTAN (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thriftycarrentals.com>, registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com.

 

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.

 

Tyrus R. Atkinson, Jr., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 7, 2003; the Forum received a hard copy of the Complaint on April 11, 2003.

 

On April 7, 2003, Iholdings.Com, Inc. d/b/a Dotregistrar.Com confirmed by e-mail to the Forum that the domain name <thriftycarrentals.com> is registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com and that Respondent is the current registrant of the name. Iholdings.Com, Inc. d/b/a Dotregistrar.Com has verified that Respondent is bound by the Iholdings.Com, Inc. d/b/a Dotregistrar.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 April 14, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 5, 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@thriftycarrentals.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 May 14, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., 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.

 

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 <thriftycarrentals.com> domain name is confusingly similar to Complainant’s THRIFTY CAR RENTAL mark.

 

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

 

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

 

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

 

FINDINGS

Complainant is one of the largest vehicle rental companies in the United States and the world.  Complainant rents cars and other vehicles from more than 1300 locations in 58 countries and territories throughout North, Central, and South America, as well as Europe, the Middle East, the Caribbean, Asia and the Pacific.  Complainant was founded in 1957 and has used its THRIFTY CAR RENTAL mark since then.  Complainant currently owns sixteen trademark registrations with the U.S. Patent and Trademark Office containing the word THRIFTY, including THRIFTY CAR RENTAL, which is Registration Number 1,566,277 issued on November 14, 1989.  Complainant also holds the registration for <thrifty.com> and <thriftycar-rentals.com>.  Complainant provides online vehicle rental services and a computer database relating to travel and vehicle rentals.

 

Respondent, Azra Khan, registered the <thriftycarrentals.com> domain name on January 21, 2002.  Respondent, a pattern cybersquatter, has registered other domain names that incorporate famous marks, including <welllsfargo.com>, <bigkmart.com>, <familycirclemagaziner.com> and <unitedcolorsofbenetton.com>.  Respondent is using <thriftycarrentals.com> to divert Internet traffic to <www1.vipfares.com>, a website that offers travel reservation services.

 

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.

 

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

 

Complainant has established that it has rights in the THRIFTY CAR RENTAL mark through registration with the U.S. Patent and Trademark Office, as well as continuous use in relation to its car rental services since 1957.

 

Respondent’s <thriftycarrentals.com> domain name is confusingly similar to Complainant’s mark because it incorporates Complainant’s entire mark and merely adds an “s” to the end of it.  The addition of an “s” does not create a distinct mark.  Thus, Respondent’s domain name does not overcome a Policy ¶ 4(a)(i) analysis.  See Nat’l Geographic Soc. v. Stoneybrook Inv., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to Complainant’s “National Geographic” mark); see also Blue Cross & Blue Shield Ass’n v. InterActive Communications, Inc., D2000-0788 (WIPO Aug. 28, 2000) (finding that a domain name which merely adds the letter ‘s’ to Complainant’s mark is sufficiently similar to the mark to cause a likelihood of confusion among the users of the Complainant’s services and those who were to view a web site provided by the Respondent accessed through the contested domain name).

 

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

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) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant 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”).

 

Moreover, Respondent has failed to invoke any circumstances that could demonstrate rights and legitimate interests in the domain name.  When Complainant asserts a prima facie case against Respondent, the burden of proof shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  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 Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the Respondent has failed to invoke any circumstance that could demonstrate any rights or legitimate interests in the domain name).

 

Respondent is not making any use of the <thriftycarrentals.com> domain name other than to use it to divert Internet users to <www1.vipfares.com>.  The website located at this domain offers travel reservation services that compete with Complainant’s own online services.  Thus, the Panel finds that Respondent is not using the disputed domain name in connection with 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).  See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing website); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that “[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the Complainant’s mark and for the same business”).

 

Respondent is a repeat cybersquatter known to the Panel as Azra Khan, who has registered numerous domain names that incorporate well-known marks. The Panel thus finds it highly unlikely that Respondent, even if it had Responded, could produce any evidence establishing that it is commonly known as THRIFTY CAR RENTALS or <thriftycarrentals.com>.  The Panel therefore infers that Respondent does not have any rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(i).  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); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

 

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Complainant’s THRIFTY CAR RENTAL mark is known all over the world.  Moreover, Complainant has registered the mark with the U.S. Patent and Trademark Office.  The Panel infers that Respondent was on notice of Complainant’s rights in the THRIFTY CAR RENTAL mark when it registered <thriftycarrentals.com>.  Registration of an infringing domain name despite actual knowledge of Complainant’s rights is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii).  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the worldwide prominence of the mark and thus Respondent registered the domain name in bad faith).

 

Respondent is using the <thriftcarrentals.com> domain name to divert Internet traffic to a commercial website that offers travel reservation services.  The Panel infers that Respondent is profiting from the Internet traffic that is directed to Respondent’s website.  Respondent is therefore using a confusingly similar domain name to cause Internet confusion for its own commercial gain.  This type of behavior is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).

 

Thus, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

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

 

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

 

 

 

 

Tyrus R. Atkinson, Jr., Panelist

Dated:  May 20, 2003

 

 

 

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