DECISION

 

Hearst Communications, Inc. v. Gampong Pungget / Organization Paplemo

Claim Number: FA1612001708890

 

PARTIES

Complainant is Hearst Communications, Inc. (“Complainant”), represented by Ravi V. Sitwala, New York, USA.  Respondent is Gampong Pungget / Organization Paplemo (“Respondent”), American Samoa.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <caranddriverr.com>, (‘the Domain Name’) registered with CV. Jogjacamp.

 

PANEL

The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne of Palmer Biggs IP as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on December 21, 2016; the Forum received payment on December 21, 2016.

 

On December 27, 2016, CV. Jogjacamp confirmed by e-mail to the Forum that the <caranddriverr.com> domain name is registered with CV. Jogjacamp and that Respondent is the current registrant of the name.  CV. Jogjacamp has verified that Respondent is bound by the CV. Jogjacamp 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 December 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 18, 2017 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@caranddriverr.com.  Also on December 29, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.

 

On 30^th January 2017 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP  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" 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 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

 

Complainant is a publisher of magazines including ‘Car and Driver’ magazine with a circulation of over 1.2 million in the US which reaches over 9 million readers with international editions. It has a web site at caranddriver.com which receives over 5 million unique visitors a month and 20 million page views. It holds registered trade marks in the United States for publications including electronic publishing services, with first use of the mark in commerce recorded as 1961.

 

The Domain Name was registered in 2015. It is confusingly similar to Complainant’s trade mark. Complainant has no contractual or other relationship with Respondent. Respondent is not commonly known by the Domain Name. Respondent has registered the Domain Name in order to divert Internet users searching for the Complainant to Respondent’s own web site. Respondent’s WhoIs information is an attempt to hide the true owner, registrant and operator of the Domain Name. Respondent has no rights or legitimate interest in respect to the Domain Name.

 

Respondent is typosquatting by adding an extra ‘r’ at the end of Complainant’s mark in the Domain Name. The Domain Name was registered and used in bad faith because Respondent has intentionally attempted to attract for commercial gain Internet users to its web site by creating a likelihood of confusion with Complainant’s mark among Internet users as to the source or affiliation of Respondent’s web site. Respondent has knowledge of Complainant’s rights as it scrapes copyright content from Complainant’s web site.

B. Respondent

 

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant is a publisher of magazines including ‘Car and Driver’ magazine. It holds registered trade marks in the United States for CAR AND DRIVER for publications including electronic publishing services, with first use of the mark in commerce recorded as 1961.

 

The Domain Name appears to be a typosquatted version of Complainant’s mark and Complainant has identified that it has been used to present material from Complainant’s web site without permission.

 

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(f), 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 (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  or Confusingly Similar

The Domain Name consists of Complainant's CAR AND DRIVER mark (which is registered in the USA for publications and publishing services and has been used since 1961), the single letter ‘r’ and the gTLD .com. Previous panels have found confusing similarity when a respondent merely adds a single letter to a Complainant's mark. See Am. Online Inc. v Tencent Commc’ns Corp, FA 93668 (Forum Mar. 21, 2000)(finding that the addition of a single letter ‘o’ did not avoid confusing similarity with the complainant’s mark). The  Panel agrees that the addition of the single letter ‘r’  to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.

 

The gTLD .com does not serve to distinguish the Domain Name from the CAR AND DRIVER mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the policy to a mark in which Complainant has rights.

 

As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

Complainant has not authorised the use of its mark. Respondent’s uses Complainant’s trade mark with an addition ‘r’ on its site. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).

 

The web site attached to the Domain Name uses a sign confusingly similar to Complainant's trade marks and Respondent is using the site in competition with those of Complainant.  It does not make it clear that there is no commercial connection with Complainant.,  The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)

 

As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

In the opinion of the Panel the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by Complainant as it offers competing services under a Domain Name containing Complainant’s CAR AND DRIVER mark.  The use of Complainant's copyright material on Respondent's web site shows that Respondent is aware of Complainant and its business. Accordingly, the Panel holds that  Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of services offered on the web site likely to disrupt the business of Complainant. (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use). The Domain Name also appears to be a typosquatted version of Complainant’s mark. See Homer TLC, Inc v Artem Ponomarev, FA 1506001623825, (Forum July 20, 2015) ‘Typosquatting is independent evidence of bad faith in the registration and use of a domain name’ under 4 (b)(iii)).

 

As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4 (b)(iii).

 

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

 

 

 

Dawn Osborne, Panelist

Dated:  February 9, 2017