Vanguard Trademark Holdings USA LLC v. NCR c/o Nicholas
Claim Number: FA1411001589612
Complainant is Vanguard Trademark Holdings USA LLC (“Complainant”), represented by David R. Haarz of Harness, Dickey & Pierce, PLC., Virginia, USA. Respondent is NCR c/o Nicholas (“Respondent”), Kenya.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nationalcarentalservices.com>, registered with Onlinenic Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 12, 2014; the National Arbitration Forum received payment on November 12, 2014.
On November 12, 2014, Onlinenic Inc confirmed by email to the National Arbitration Forum that the <nationalcarentalservices.com> domain name is registered with Onlinenic Inc and that Respondent is the current registrant of the name. Onlinenic Inc has verified that Respondent is bound by the Onlinenic Inc 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 November 13, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 3, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@nationalcarentalservices.com. Also on November 13, 2014, the Written Notice of the Complaint, notifying Respondent of the email 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 December 12, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant is the owner of the NATIONAL and NATIONAL CAR RENTAL marks, which it licenses to National Car Rental operating companies. Complainant states that National Car Rental is an internationally recognized
brand, and that National Car Rental companies operate throughout the United
States, Canada, Mexico, the Caribbean, Latin America, Asia, and the Pacific Rim.
Complainant contends that the disputed domain name <nationalcarentalservices.com> is confusingly similar to its marks. Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name. In support thereof, Complainant states that the domain name resolves to a website titled “National Car Rental Services,” offering car rental services competitive with those of Complainant. Complainant states that it has not licensed or authorized Respondent to use its marks. Complainant alleges that in light of Complainant’s long-standing use of its registered marks in connection with car rental services, Respondent cannot have any legitimate rights arising from its use of the disputed domain name in connection with a site that offers related and competing goods and services, even if Respondent were operating a business known as “National Car Rental.”
Finally, Complainant contends that the disputed domain name was registered and is being used in bad faith. In support thereof, Complainant alleges that Respondent’s website evidences a clear intent to trade upon the goodwill associated with Complainant’s marks, and that Respondent is deliberately using a domain name that is confusingly similar to Complainant’s marks in order to attract Internet users for commercial gain by creating a likelihood of confusion with Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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.”).
The disputed domain name consists of Complainant’s NATIONAL CAR RENTAL mark, with the spaces and one of the two adjacent Rs omitted, and the generic term “services” and the top-level domain “.com” added. These alterations are insufficient to distinguish the domain name from Complainant’s mark. See, e.g., Vanguard Trademark Holdings USA LLC v. Onur Gunal, FA 1249124 (Nat. Arb. Forum Apr. 17, 2009) (finding <nationalrentacarservices.com> confusingly similar to NATIONAL); NCRAS Management, LP V. R. Cole, D2001-0554 (WIPO June 18, 2001) (finding <nationalcarental.com> confusingly similar to NATIONAL CAR RENTAL). The Panel therefore finds that the disputed domain name is confusingly similar to Complainant’s NATIONAL CAR RENTAL mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name is confusingly similar to Complainant’s mark, its only apparent use is in connection with a website that appears to offer services competitive with those of Complainant under a name that is nearly identical to that of Complainant’s licensee. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Alcon, Inc. v. ARanked, FA 1306493 (Nat. Arb. Forum Mar. 18, 2010). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service
on [Respondent’s] web site or location.”
Respondent’s use of the disputed domain name to promote competing goods and services falls squarely within this provision of the Policy. In the absence of evidence to the contrary, the Panel infers that the domain name was registered for this bad faith use. The Panel therefore finds that Complainant has sustained its burden of proving that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nationalcarentalservices.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 15, 2014
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