Andy Mohr Chevrolet, Inc. v. Cayman Ninety Business c/o Domain Administrator
Claim Number: FA1403001548524
Complainant is Andy Mohr Chevrolet, Inc. (“Complainant”), represented by Michael P. Shanahan of Harrison & Moberly, LLP, Indiana, USA. Respondent is Cayman Ninety Business c/o Domain Administrator (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <andymohrchevrolet.com>, registered with Rebel.com Corp.
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 National Arbitration Forum electronically on March 13, 2014; the National Arbitration Forum received payment on March 17, 2014.
On March 13, 2014, Rebel.com Corp. confirmed by e-mail to the National Arbitration Forum that the <andymohrchevrolet.com> domain name is registered with Rebel.com Corp. and that Respondent is the current registrant of the name. Rebel.com Corp. has verified that Respondent is bound by the Rebel.com Corp. 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 March 21, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 10, 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@andymohrchevrolet.com. Also on March 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 April 16, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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" 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
1. Complainant has used the ANDY MOHR CHEVROLET mark for over twenty years to sell automobiles, automobile parts, accessories, and services.
2. Complainant does not own a trademark registration for the ANDY MOHR CHEVROLET mark, however, trademark registrations are not necessary under Policy ¶ 4(a)(i).
3. Respondent’s <andymohrchevrolet.com> domain name is identical to complainant’s ANDY MOHR CHEVROLET mark. Respondent adds the generic top-level domain (“gTLD”) “.com” and deletes the spaces in between the words in the mark.
4. Respondent has no rights or legitimate interests in the <andymohrchevrolet.com> domain name. Respondent is listed as “Cayman Ninety Business” in the WHOIS information for the disputed domain name. Complainant has not authorized Respondent to use its ANDY MOHR CHEVROLET mark.
5. Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. Respondent uses the dispute domain name to redirect Internet users to a website that contains malware.
6. Respondent registered and is using the <andymohrchevrolet.com> domain name in bad faith. Respondent has previously been the respondent in at least six other UDRP proceedings resulting in the disputed domain name being transferred to the complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Andy Mohr Chevrolet, Inc., claims to have used the ANDY MOHR CHEVROLET mark for over twenty years to sell automobiles, automobile parts, accessories, and services. However, Complainant has failed to show rights in the mark under Policy ¶ 4(a)(i). Complainant does not own a trademark registration for the ANDY MOHR CHEVROLET mark. Nor has Complainant shown common law rights in the mark.
Respondent, Cayman Ninety Business c/o Domain Administrator, registered the <andymohrchevrolet.com> domain name on October 2, 2005.
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 claims that it has rights in its ANDY MOHR CHEVROLET mark through its history of continuous use and public recognition associated with the ANDY MOHR CHEVROLET mark. Complainant does not own a trademark registration for the ANDY MOHR CHEVROLET mark. Nor has Complainant shown common law rights in the ANDY MOHR CHEVROLET mark.
In support of secondary meaning, Complainant has submitted articles of incorporation in the State of Indiana for Andy Mohr Chevrolet, Buick, Geo, Inc., filed November 18, 1992; and for Andy Mohr Chevrolet, Inc., filed May 18, 2001, a 2014 advertisement, and Facebook screenshots of February and March 2014 advertisements.
First, Complainant has not shown that it has any rights in the CHEVROLET trademark. Nor is the owner of the CHEVROLET mark a party to this proceeding.
Second, Complainant has failed to show secondary meaning in the ANDY MOHR CHEVROLET mark, ie, that the mark “has become a distinctive identifier associated with the complainant of its goods or services.” WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, para. 1.7. “Relevant evidence of ‘such secondary meaning’ includes length and amount of sales under the trademark, the nature and extent of advertising, consumer surveys and media recognition.” Id.; see also, Amsec Enterprises, L.C. v. Sharon McCall, D2001-0083 (WIPO April 3, 2001) (single web page inadequate to show nature and manner of use). Accordingly, Complainant has failed to prove common law rights in the ANDY MOHR CHEVROLET mark under Policy ¶ 4(a)(i).
Complainant does not have a registered trademark for the ANDY MOHR CHEVROLET mark and has failed to show common law rights in the mark. Therefore, Complainant has failed show rights in the mark under Policy ¶ 4(a)(i).
Since Complainant has failed to prove the first element, it is unnecessary to address the second and third elements.
Complainant having failed to establish the first element required under the ICANN Policy, the Panel concludes that relief shall be DENIED without prejudice.
Accordingly, it is Ordered that the <andymohrchevrolet.com> domain name REMAIN WITH Respondent.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 28, 2014
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