Vanguard Trademark Holdings USA LLC v. sahin diktepe
Claim Number: FA1708001745968
Complainant is Vanguard Trademark Holdings USA LLC (“Complainant”), represented by David R. Haarz of Harness, Dickey & Pierce, PLC., Virginia, USA. Respondent is sahin diktepe (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alamocarerzurum.com> and <alamocartrabzon.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 24, 2017; the Forum received payment on August 24, 2017.
On August 25, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <alamocarerzurum.com> and <alamocartrabzon.com> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 August 25, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 14, 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@alamocarerzurum.com, postmaster@alamocartrabzon.com. Also on August 25, 2017, 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 September 19, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant’s ALAMO mark is licensed to Alamo Rent a Car and is used as the mark for the international rent-a-car service. Complainant registered mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,097,722 registered July 25, 1978). Respondent’s domain names are confusingly similar to Complainant’s ALAMO mark. Respondent’s <alamocarerzurum.com> and <alamocartrabzon.com> fully incorporate Complainant’s mark and merely add the descriptive term for Complainant’s business “car,” geographic identifiers “Erzurum” and “Trabzon,” and the “.com” generic top level domain (“gTLD”).
Respondent has no right or legitimate interest in the disputed domain names. Respondent is not commonly known by the disputed domain names. One of Respondent’s sites offers competing services, the other resolves to an inactive site. Respondent’s use is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the mark.
Respondent registered and is using the disputed domain names in bad faith. Respondent had actual notice of Complainant’s ALAMO mark. Respondent registered the disputed domain names to create confusion as to source, sponsorship, affiliation, or endorsement of the site by using the Complainant’s mark to attract users.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Vanguard Trademark Holdings USA LLC. Complainant’s ALAMO mark is licensed to Alamo Rent a Car and is used as the mark for the international rent-a-car service. Complainant registered mark with the USPTO (e.g., Reg. No. 1,097,722 registered July 25, 1978). Respondent’s <alamocarerzurum.com> and <alamocartrabzon.com> domain names are confusingly similar to Complainant’s ALAMO mark.
Respondent, sahin diktepe, registered <alamocarerzurum.com> and <alamocartrabzon.com> on April 22 and May 3, 2017, respectively.
Respondent has no rights or legitimate interests in the disputed domain names. One of Respondent’s sites offers competing services, the other resolves to an inactive site.
Respondent registered and is using the disputed domain names 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(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.”).
Complainant has rights in the ALAMO mark through registration with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <alamocarerzurum.com> and <alamocartrabzon.com> are confusingly similar to the ALAMO mark. Both fully incorporate Complainant’s ALAMO mark and add the descriptive term for Complainant’s business “car,” geographic identifiers “Erzurum” and “Trabzon,” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the <alamocarerzurum.com> and <alamocartrabzon.com> domain names. The WHOIS information lists “sahin diktepe” as the registrant of the disputed domain names.
Respondent has not made a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names. The resolving website for <alamocarerzurum.com> offers competing, car-renting services similar to Complainant’s business. Panels have found that a Respondent’s registration in order to confuse and divert users from Complainant’s business does not constitute a legitimate interest in the disputed domain name. See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent registered and used <alamocartrasbzon.com> to offer services similar to Complainant’s, but now the resolving website shows “Services Temporarily Unavailable.” Inactive use does not create a legitimate interest in a disputed domain name. See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv). Respondent registered <alamocarerzurum.com> and <alamocartrabzon.com> to create confusion and divert users from Complainant’s business. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).
Respondent had actual notice of Complainant’s ALAMO mark when registering the <alamocarerzurum.com> and <alamocartrabzon.com> domain names. Therefore, Respondent registered and uses the domain names in bad faith under Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alamocarerzurum.com> and <alamocartrabzon.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 3, 2017
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