National Driver Training, Inc., a Colorado corporation v. Domain Administrator
Claim Number: FA1404001553615
Complainant is National Driver Training, Inc., a Colorado corporation (“Complainant”), represented by H. Dale Langley Jr. of Law Firm of H. Dale Langley, Jr., P.C., Texas, USA. Respondent is Domain Administrator (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nationaldriverstraining.com>, registered with Moniker Online Services 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 10, 2014; the National Arbitration Forum received payment on April 10, 2014.
On April 17, 2014, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <nationaldriverstraining.com> domain name is registered with Moniker Online Services LLC and that Respondent is the current registrant of the name. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services 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 April 21, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 12, 2014 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@nationaldriverstraining.com. Also on April 21, 2014, 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 13, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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
a. Policy ¶ 4(a)(i)
i. Complainant, National Driver Training, Inc., uses the NATIONAL DRIVER TRAINING mark in connection with education services, namely, providing online instruction, live classroom lectures, and behind-the-wheel training in the field of driver education and instruction, and distribution of course materials in connection therewith.
ii. Complainant owns trademark registrations with United States Patent and Trademark Office (“USPTO”) for the NATIONAL DRIVER TRAINING mark (e.g., Reg. No. 4,348,805, registered June 11, 2013).
iii. Complainant has common law rights in the NATIONAL DRIVER TRAINING mark.
iv. The <nationaldriverstraining.com> domain name is confusingly similar to Complainant’s NATIONAL DRIVER TRAINING.
b. Policy ¶ 4(a)(ii)
i. Respondent has no rights or legitimate interests in the disputed domain name.
ii. Respondent is not commonly known by the disputed domain name.
iii. The disputed domain name resolves to a webpage which links Internet users to a third-party websites featuring products and services like those offered by Complainant.
c. Policy ¶ 4(a)(iii)
i. The disputed domain name should be considered as having been registered and being used in bad faith.
ii. Respondent has sought to sell the domain name to Complainant for far in excess of documented out-of-pocket costs directly related to the domain name. See Complainant’s Annex 14.
iii. Respondent has a lengthy history of being a respondent in UDRP proceedings because of its domain names.
iv. Respondent’s disputed domain name resolves to a webpage which links Internet users to third-party websites featuring products and services like those offered by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is National Driver Training, Inc., of Lakeway, TX, USA. Complainant is the owner of domestic registrations for the mark NATIONAL DRIVER TRAINING and related marks which it has used continuously since at least as early as its first registration in 2013. Complainant uses the marks in connection with its provision of services in the field of driver education. Complainant has also been using its mark on the web to identify its services via the registered domain name <nationaldrivertraining.com> since 1998.
Respondent is Domain Administrator, of Santa Ana, CA, USA. Respondent’s registrar’s address is listed as Portland, OR, USA. Respondent registered the <nationaldriverstraining.com> domain name on or about August 21, 2010.
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 alleges that it uses the NATIONAL DRIVER TRAINING mark in connection with education services, namely, providing online instruction, live classroom lectures, and behind-the-wheel training in the field of driver education and instruction, and distribution of course materials in connection therewith. Complainant contends that it owns trademark registrations with USPTO for the NATIONAL DRIVER TRAINING mark (e.g., Reg. No. 4,348,805, registered June 11, 2013). The Panel also notes that Respondent resides within the United States. The Panel finds that Complainant’s registration of the NATIONAL DRIVER TRAINING mark with the USPTO shows sufficient proof that Complainant has rights in the mark under Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant asserts that it has common law rights in the NATIONAL DRIVER TRAINING mark. Complainant argues that it has owned the <nationaldrivertraining.com> domain name since February 23, 1998. Complainant claims that it has used its NATIONAL DRIVER TRAINING mark since at least as early as February 28, 1998. Complainant asserts that its services are sold under the NATIONAL DRIVER TRAINING mark in all fifty states. Complainant also alleges that its services have been recognized by the driver education and training industry. In Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000), the panel found common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established. The Panel here finds that Complainant’s continuous and ongoing use of the NATIONAL DRIVER TRAINING mark shows secondary meaning in the mark, demonstrating common law rights under Policy ¶ 4(a)(i) dating back to February 1998.
Complainant alleges that Respondent’s <nationaldriverstraining.com> domain name is confusingly similar to Complainant’s NATIONAL DRIVER TRAINING. Complainant states that Respondent merely adds an “s” to make the word “driver” plural. The Panel notes that Respondent’s addition of the letter “s” does not distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). See T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)). The Panel further notes that Respondent has removed the spaces in Complainant’s NATIONAL DRIVER TRAINING mark and added the generic top-level domain (“gTLD”) “.com” to the disputed domain name. The Panel finds that Respondent’s omission of spaces and inclusion of a gTLD is irrelevant under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). The Panel here finds that Respondent’s <nationaldriverstraining.com> domain name is confusingly similar to Complainant’s NATIONAL DRIVER TRAINING under Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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). The Complainant has met this burden.
Complainant argues that Respondent is not commonly known by the <nationaldriverstraining.com> domain name. Complainant alleges that the WHOIS information identifies the registrant of the disputed domain name as “Moniker Privacy Services.” The Panel notes that Respondent has failed to provide any evidence showing that it is known by the disputed domain name. Because the Panel finds that there is no evidence in the record showing that Respondent is commonly known under the disputed domain name, the Panel finds that Respondent is not commonly known by the <nationaldriverstraining.com> domain name pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant contends that Respondent’s <nationaldriverstraining.com> domain name resolves to a webpage which links Internet users to a third-party websites featuring products and services like those offered by Complainant. The Panel notes that Respondent’s domain name resolves to a webpage featuring competing links such as “TEXAS DRIVERS ED COURSE,” “6 HOUR ONLINE DRIVERS ED,” and “DEFENSIVE DRIVER SCHOOL”. In ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007), the panel rejected respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use 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). The Panel here finds that Respondent is not using the <nationaldriverstraining.com> domain name in connection with a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant argues that Respondent has a lengthy history of being a respondent in UDRP proceedings because of its domain names, as evidenced by Respondent’s usage of the “manilaindustries” e-mail account. See Westcoast Contempo Fashions Limited v. Manila Industries, Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006); See Valpak Direct Marketing Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006); Cap Gemini v. Manila Indus. Inc./”Cap Gemini,” D2006-0027 (WIPO May 16, 2006). Complainant contends that Respondent has been almost universally unsuccessful in other cases in attempting to defend/justify its domain name registration practices. See Complainant’s Annex. The Panel finds that, based on Respondent’s prior UDRP proceedings resulting in bad faith findings and transfer, Respondent has registered and is using the <nationaldriverstraining.com> domain name in bad faith under Policy ¶ 4(b)(ii).
Complainant contends that Respondent’s <nationaldriverstraining.com> domain name resolves to a webpage which links Internet users to third-party websites featuring products and services like those offered by Complainant. Complainant argues that Respondent does not, itself, make any bona fide offering of products or services through the disputed domain name, but instead posts links to competitors of Complainant. Complainant contends that it can be assumed that Respondent commercially gains from these links, whether from the receipt of click-through fees or otherwise. In Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), the panel found that “Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).” The Panel here finds that Respondent has registered and is using the <nationaldriverstraining.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <nationaldriverstraining.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: May 27, 2014
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