DECISION

 

American Honda Motor Co. Inc. v. Brian Galvan

Claim Number: FA2401002079877

 

PARTIES

Complainant is American Honda Motor Co. Inc. ("Complainant"), represented by Samantha Markley of Loza & Loza, LLP, California, USA. Respondent is Brian Galvan ("Respondent"), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <hondajet.flights>, registered with NameCheap, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 18, 2024; Forum received payment on January 18, 2024.

 

On January 18, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <hondajet.flights> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 January 22, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 12, 2024 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@hondajet.flights. Also on January 22, 2024, 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 February 13, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

Complainant is the world's largest motorcycle manufacturer, the world's largest engine maker, one of the world's leading automakers, and one of the best-known and most well-respected companies. Complainant develops, manufactures, and distributes a wide variety of products, ranging from small, general-purpose engines and scooters to specialty sports cars, personal watercrafts, and jet airplanes.

 

Complainant's owns multiple USPTO registrations for HONDA and HONDAJET.

 

Respondent's <hondajet.flights> domain name is confusingly similar to Complainant's HONDA and HONDAJET trademarks as both marks are contained in the domain name. The only difference between HONDAJET and the domain name is the domain name's addition of the ".flight" top-level.

 

Respondent lacks rights and legitimate interests in the at-issue domain name. Complainant has exclusive rights in the well-known HONDA and HONDAJET marks and has not authorized Respondent to register and use the at-issue domain name. Complainant is not affiliated with Respondent. Respondent is not commonly known by the <hondajet.flights> domain name and not using the domain name in connection with any bona fide offering of goods or services. 

 

Respondent acted in bad faith. Respondent had actual or constructive knowledge of Complainant's trademarks when it registered the at-issue domain name. Respondent is using the domain name to intentionally attract, for commercial gain, internet users to a website by creating confusion with a complainant's mark. Respondent uses the domain name to intentionally attract consumers seeking Complaint's products to a website that uses Complainant's registered logo in an attempt to mislead consumers into believing that Respondent is, in fact, Complainant, or at the very least, is associated with Complainant.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the HONDA and HONDAJET trademarks.

 

Respondent is not affiliated with Complainant and had not been authorized to use Complainant's trademarks in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in the HONDA and HONDAJET trademark.

 

Respondent uses the at-issue domain name to address a website to pass off as Complainant and capitalize on Complainant's trademark.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to trademarks in which Complainant has rights.

 

Complainant's registration of the HONDA and/or HONDAJET marks with the USPTO sufficiently demonstrates 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 <hondajet.flights> domain name consists of Complainant's HONDA and/or HONDAJET mark followed by the ".flights" top-level. The slight difference between Complainant's trademarks and the at-issue domain name fail to distinguish the domain name from Complainant's trademarks for the purposes of the Policy. Therefore, the Panel concludes that Respondent's <hondajet.flights> domain name is identical or confusingly similar to Complainant's HONDA and HONDAJET trademarks pursuant to Policy ¶ 4(a)(i). See Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) ("Complainant asserts Respondent's <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).").

 

Rights or Legitimate Interests

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 trademarks 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.

 

The WHOIS information for the at-issue domain name identifies the domain name's registrant as "Brian Galvan" and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <hondajet.flights> domain name. The Panel therefore concludes that Respondent is not commonly known by <hondajet.flights> for the purposes of Policy ¶ 4(c)(ii). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where "the WHOIS of record identifies the Respondent as "Bhawana Chandel," and no information in the record shows that Respondent was authorized to use Complainant's mark in any way.").

 

Respondent uses the confusingly similar <hondajet.flights> domain name to address a website that at first glance appears to be associated with Complainant when it is not. There, HONDAJET product information is displayed and consumers can purportedly book flights on HONDAJET aircrafts and/or purchase HONDAJET aircrafts. The website is more likely a façade as the contact information presented on the website is mere filler showing a placeholder email address and phone number. 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 usTLD Policy ¶ 4(c)(iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent's use of the complainant's LIFESTYLE LOUNGE mark to redirect internet users to respondent's own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).

 

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).

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶4(a)(iii).

 

Respondent uses the at-issue domain name to address a website designed to appear as if it may be affiliated with Complainant when in fact it is likely a mere façade. There, Respondent purports to offer services related to Complainant's HONDAJET product line when in reality the website is likely just a mechanism to elevate the domain name's search engine ranking or portray legitimacy through activity. Respondent's use of the domain name is nevertheless disruptive to Complainant's business and shows Respondent's attempt to attract internet users, confused as to the domain name's sponsorship, to Respondent's mock website. Notably, Respondent's use of the domain name indicates bad faith regarding Respondent's registration and use of the domain name under Policy ¶ 4(b)(iii) and under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA 1612750 (Forum May 13, 2015) ("The Panel agrees that Respondent's use of the website to display products similar to Complainant's, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv)."); See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting internet users searching for the complainant to its own website and likely profiting).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the HONDA and HONDAJET marks when it registered <hondajet.flights> as a domain name. Respondent's actual knowledge of Complainant's rights in HONDA and HONDAJET is evident given the notoriety of Complainant's renowned trademarks and given the content of the <hondajet.flights> website. Respondent's registration of <hondajet.flights> with knowledge of Complainant's trademark rights in HONDA and HONDAJET further shows Respondent's bad faith registration and use of <hondajet.flights> pursuant to the Policy. 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).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <hondajet.flights> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: February 16, 2024