Vogue Tyre & Rubber Co. v. Domain Administration Limited c/o David Halstead
Claim Number: FA0702000912217
Complainant is Vogue Tyre & Rubber Co. (“Complainant”), represented by Harold
V. Stotland, of Seyfarth Shaw LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <voguetyres.com>, registered with Enom, 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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 6, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 7, 2007.
On February 7, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <voguetyres.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 February 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 6, 2007 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@voguetyres.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 12, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), 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." 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 makes the following assertions:
1. Respondent’s <voguetyres.com> domain name is confusingly similar to Complainant’s V VOGUE TYRES mark.
2. Respondent does not have any rights or legitimate interests in the <voguetyres.com> domain name.
3. Respondent registered and used the <voguetyres.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vogue Tyre &
Rubber Co., is a well-established designer and manufacturer of automobile
tires. Complainant also sells tire-related
products and services including automotive parts, accessories and detailing
services. In connection with its
automotive-related goods and services, Complainant has registered numerous
marks with the United States Patent and Trademark Office (“USPTO”), including
VOGUE (Reg. No. 212,527 issued May 4, 1926) and V VOGUE TYRES (Reg. No.
1,695,961 issued June 23, 1992).
Respondent registered the <voguetyres.com> domain name on June 26, 2002. Respondent is using the disputed domain name to display a directory of links to third-party websites that offer goods and services in competition with Complainant.
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. 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.”).
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 rights in the V VOGUE TYRES mark pursuant to Policy ¶ 4(a)(i) through its
registration of the mark with the USPTO.
See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of
the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”);
see also Vivendi Universal Games v.
XBNetVentures Inc., FA 198803
(Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal
trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <voguetyres.com>
domain name is confusingly similar to Complainant’s V VOGUE TYRES mark because the domain name merely omits the first
letter of the mark. The Panel finds that
this does not sufficiently distinguish the domain name from Complainant’s mark
pursuant to Policy ¶ 4(a)(i). See Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum
Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly
similar to the complainant’s COMPAQ mark because the omission of the letter “a”
in the domain name does not significantly change the overall impression of the
mark); see also Toronto-Dominion
Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain
names <tdwatergouse.com> and <dwaterhouse.com> are virtually
identical to the complainant’s TD WATERHOUSE name and mark).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights or legitimate interests in the <voguetyres.com> domain name. When Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Because Respondent failed to respond to the Complaint, the Panel accepts Complainant’s assertions as true and assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is using the <voguetyres.com> domain name, which is
confusingly similar to Complainant’s V
VOGUE TYRES mark, to divert Internet users to a website containing links to third-party
websites that sell automotive products that compete with Complainant. Such use of the disputed domain name does not
constitute a bona fide offering of
goods and services pursuant to Policy ¶ 4(c)(i), or a legitmate noncommercial or fair use of
the domain name pursuant to Policy ¶ 4(c)(iii). See
Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum
June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to
market products that compete with Complainant’s goods does not constitute a
bona fide offering of goods and services.”); see also Ameritrade Holdings
Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that
the respondent’s use of the disputed domain name to redirect Internet users to
a financial services website, which competed with the complainant, was not a bona
fide offering of goods or services).
No information in the record, including Respondent’s WHOIS
information, suggests that Respondent is commonly known by the <voguetyres.com> domain name. Thus, the Panel finds that Respondent is not
commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding
that the respondent does not have rights in a domain name when the respondent
is not known by the mark); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information
for the disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <voguetyres.com> domain name, which is confusingly similar to Complainant’s mark, to divert Internet users seeking Complainant’s automotive-related products and services to a website containing links to competing products and services. By taking commercial advantage of the confusing similarity between Respondent’s domain name and Complainant’s mark, Respondent is profiting from the goodwill associated with the mark. Use of the disputed domain name for this purpose illustrates bad faith registration and use under Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <voguetyres.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: March 22, 2007
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