Thrifty, Inc. and Thrifty Rent-a-Car
System, Inc. v. Azra Khan
Claim
Number: FA0304000154111
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.
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.
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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
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.
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.
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 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.
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.
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.
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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