Jaguar Land Rover Limited v. MCKENZIE EDELBACHER / NO LIMIT AUTO SERVICES
Claim Number: FA1409001581908
Complainant is Jaguar Land Rover Limited (“Complainant”), represented by Jennifer M. Hetu of Honigman Miller Schwartz and Cohn LLP, Michigan, USA. Respondent is MCKENZIE EDELBACHER / NO LIMIT AUTO SERVICES (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <fresnojaguarlandrover.com>, <fresnojaguarlandrover.net>, <fresnojaguarlandrover.co>, and <fresnojaguarlandrover.org>, registered with GoDaddy.com, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 26, 2014; the National Arbitration Forum received payment on September 26, 2014.
On September 26, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <fresnojaguarlandrover.com>, <fresnojaguarlandrover.net>, <fresnojaguarlandrover.co>, and <fresnojaguarlandrover.org>, domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 October 6, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 27, 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@fresnojaguarlandrover.com, postmaster@fresnojaguarlandrover.net, postmaster@fresnojaguarlandrover.co, and postmaster@fresnojaguarlandrover.org. Also on October 6, 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 November 4, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Complainant owns both the JAGUAR and LAND ROVER marks as demonstrated by registrations with the United States Patent and Trademark Office ("USPTO"), and subsequent assignments to Complainant from the original registrants. Complainant uses the JAGUAR and LAND ROVER marks in connection with its automobile manufacturing and sales. The <fresnojaguarlandrover.com>, <fresnojaguarlandrover.net>, <fresnojaguarlandrover.co>, and <fresnojaguarlandrover.org> domain names are confusingly similar to the JAGUAR and LAND ROVER marks as the domain names combine the two marks, add the geographically descriptive term “Fresno,” as well as a version of a top-level domain.
2. Respondent has never been commonly known by the disputed domain names. Further, Respondent is not authorized to use the JAGUAR or LAND ROVER marks for domain names. The disputed domain names are not used for a bona fide offering of goods or services, or for a legitimate noncommercial of fair use. Instead, the <fresnojaguarlandrover.com> resolves to a parked page offering a series of hyperlinks, some of which relate to Complainant and automobile sales. Respondent offered to sell the disputed domain names to Complainant for $10,000 each, which further suggests Respondent lacks any rights in the disputed domain names.
3. Respondent has engaged in bad faith use and registration. In response to Complainant’s cease and desist letter, Respondent offered to sell the disputed domain names to Complainant for $10,000 each. In addition, Respondent’s use of the disputed domain names to promote links to competing automobile sales websites disrupts Complainant’s business. Further, Respondent’s use of the disputed domain names was designed to confuse Internet users into believing Respondent and its website was affiliated with Complainant, and Respondent likely profits based on this confusion. Finally, given the fame of the JAGUAR and LAND ROVER marks, Respondent had knowledge of Complainant’s rights when the disputed domain names were registered.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complaint, Jaguar Land Rover Limited, of the United Kingdom is the owner of numerous domestic and international registrations for the marks JAGUAR and LAND ROVER. Complainant has continuously used the marks in connection with the sale and service of luxury automobiles since at least as early as 1935 and 1948 respectively.
Respondent is McKenzie Edelbacher/ No Limit Auto Services of Fresno, CA, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. Respondent’s earliest domain name was registered on or about March 5, 2014.
Preliminary Issue: Consent to Transfer
The FORUM received an e-mail on October 14, 2014 from Respondent, indicating that she “would like to release all of the domain names.” This correspondence is identified in this proceeding as “Correspondence – Respondent.” The Panel notes that the email indicates that it was sent by the individual identified in the WHOSIS as the registrant of the disputed domain names and from that individual’s listed contact email. The Panel finds that the submission demonstrates Respondent’s consent to transfer the disputed domain names.
Respondent consents to transfer the <fresnojaguarlandrover.com>, <fresnojaguarlandrover.net>, <fresnojaguarlandrover.co>, and <fresnojaguarlandrover.org> domain names to Complainant. As a result, the Panel finds that in a circumstance such as this, where Respondent has not contested the transfer of the disputed domain names but instead agrees to transfer the domain names in question to Complainant, it is unnecessary for the Panel to engage in the traditional UDRP analysis. The Panel orders an immediate transfer of the disputed domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
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.”).
See Preliminary Issue above. Respondent consented to transfer.
See Preliminary Issue above. Respondent consented to transfer.
See Preliminary Issue above. Respondent consented to transfer.
The Panel concludes that Complainant’s requested relief shall be GRANTED.
Because the Respondent consented to transfer the Panel Orders the <fresnojaguarlandrover.com>, <fresnojaguarlandrover.net>, <fresnojaguarlandrover.co>, and <fresnojaguarlandrover.org> domain names be immediately TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: November 18, 2014
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