Vanguard Trademark Holdings USA LLC v. Cory Harrington / House Buyers Direct
Claim Number: FA2304002038430
Complainant is Vanguard Trademark Holdings USA LLC (“Complainant”), represented by Joel R. Samuels of Harness, Dickey & Pierce, PLC, Missouri, USA. Respondent is Cory Harrington / House Buyers Direct (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alamoev.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on April 2, 2023; Forum received payment on April 2, 2023.
On April 3, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <alamoev.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 April 7, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2023 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@alamoev.com. Also on April 7, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 3, 2023,, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
Complainant contends as follows:
Complainant, Vanguard Trademark Holdings USA LLC, offers vehicle rental services through its ALAMO mark.
Complainant claims rights in the ALAMO mark through registration with the United States Patent and Trademark Office (“USPTO”).
The at-issue domain name <alamoev.com> is confusingly similar because it wholly incorporates Complainant’s registered mark differing only through the addition the abbreviated term “ev” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <alamoev.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized Respondent to use the ALAMO mark in any way. Additionally, Respondent fails to use the at-issue domain name in connection with make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the at-issue domain name to benefit from pay-per-click advertisements. Respondent fails to make active use of the <alamoev.com> domain name.
Respondent registered and uses <alamoev.com> in bad faith. Respondent uses the at-issue to create a likelihood of confusion and benefit from pay-per-click advertisements. Respondent also fails to make active use of the domain name. Furthermore, Respondent had actual knowledge of Complainant’s rights in the ALAMO mark prior to registration of the disputed domain. Finally, Respondent used a privacy service when registering the disputed domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the ALAMO trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the ALAMO trademark.
Respondent uses the at-issue domain name to address a pay-per-click webpage.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration or any of its other trademark registrations worldwide for its ALAMO trademark is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <alamoev.com> domain name contains Complainant’s entire ALAMO trademark, followed by the suggestive term “ev” an initialism for “electric vehicles,” and with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <alamoev.com> domain name from Complainant’s ALAMO mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <alamoev.com> domain name is confusingly similar to Complainant’s ALAMO trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.) ); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name ultimately reveals the domain name’s registrant as “Cory Harrington / House Buyers Direct” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known as <alamoev.com>. The Panel therefore concludes that Respondent is not commonly known by the <alamoev.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses the confusingly similar <alamoev.com>domain name to address a parked webpage displaying pay-per-click links. Some of the links relate to Complainant’s vehicle rental service business e.g. “Cheap Auto for Rent,” “Cheap Car,” “Cheap Car Rental,” “Car Rental,” “Rental,” and “Booking for Car Rental.” Respondent’s use of the confusingly similar domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
As discussed below without being exhaustive, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First and as mention above regarding rights and legitimate interests, Respondent uses the at-issue domain name to direct internet users to a parked page displaying pay-per-click links. Such use of the domain name is disruptive to Complainant’s business and capitalizes on the confusion that Respondent created between the domain name and Complainant’s trademark. Respondent’s use of <alamoev.com> in this manner shows Respondent’s bad faith registration and use of <alamoev.com> pursuant to Policy¶ 4(b)(iii) and Policy¶ 4(b)(iv). See Plain Green, LLC v. wenqiang tang, FA 1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)); see also, Enterprise Rent-A-Car Company v. Kentech Company LTD, FA0501000406522 (Forum Mar. 4, 2005) (“[T]he Panel infers that Respondent receives click- through fees for diverting Internet users to competing car rental services. Since Respondent is using a domain name that is confusingly similar to Complainant’s mark, consumers searching for Complainant online who access Respondent’s domain name may become confused as to Complainant’s affiliation with the resulting website. Thus, the Panel finds that Respondent’s commercial use of the <carenterprise.com> constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the ALAMO mark when it registered <alamoev.com> as a domain name. Respondent’s knowledge of Complainant’s mark is evident from the notoriety of Complainant’s ALAMO trademark as well as from Respondent’s inclusion of the suggestive term “ev” in the domain name. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in ALAMO shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alamoev.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 4, 2023
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