DECISION

 

American Honda Motor Co., Inc. v. Admin Hosting / ROOM 9999

Claim Number: FA2402002084611

 

PARTIES

Complainant is American Honda Motor Co., Inc. ("Complainant"), represented by Samantha Markley of Loza & Loza, LLP, California, USA. Respondent is Admin Hosting / ROOM 9999 ("Respondent"), Indonesia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <hondatop.com>, 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 February 20, 2024; Forum received payment on February 20, 2024.

 

On February 20, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <hondatop.com> 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 February 23, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 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@hondatop.com. Also on February 23, 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 March 15, 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.

 

Respondent's <hondatop.com> domain name is confusingly similar to Complainant's HONDA trademark as Complainant's entire mark is contained in the domain name. The only difference between HONDA and the domain name is the domain name inclusion of the generic term "top" and the ".com" top-level.

 

Respondent lacks rights and legitimate interests in the at-issue domain name. Complainant has exclusive rights in the well-known HONDA 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 <hondatop.com> 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 at-issue domain name to intentionally attract internet users to the <hondatop.com> website by creating confusion between the at-issue domain name and Complainant's trademark and there offering gaming and gambling content for commercial gain.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the HONDA trademark.

 

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 trademark.

 

Respondent uses the at-issue domain name to address a website offering gaming and gambling related content and links.

 

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 a trademark in which Complainant has rights.

 

Complainant's registration of the HONDA mark 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 <hondatop.com>domain name consists of Complainant's HONDA mark followed by the generic term "top" and the ".com" top-level. The differences between Complainant's trademark 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 <hondatop.com> domain name is confusingly similar to Complainant's HONDA trademark pursuant to Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a 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 the 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 identifies the domain name's registrant as "Admin Hosting" and the record before the Panel contains no evidence tending to prove that Respondent is commonly known as <hondatop.com>. The Panel therefore concludes that Respondent is not commonly known by the <hondatop.com> domain name for the purposes of Policy ¶ 4(c)(ii). See SPTC, Inc. and Sotheby's v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as "Tony Yeh shiun," Complainant never authorized or permitted Respondent to use the SOTHEBY'S mark, and Respondent failed to submit a response).

 

Additionally, Respondent uses the at-issue domain name to address an apparent gaming and/or gambling website which uses the HONDA mark in its title, "HONDATOTO." Respondent's use of <hondatop.com> in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Dipaolo v. Genero, FA 203168 (Forum Dec. 6, 2003) ("Diversion to [adult-oriented material] is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name pursuant to [UDRP] Policy ¶¶ 4(c)(i) and (iii).").

 

Given the forgoing, Complainant 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 which lead the Panel to conclude that Respondent acted in bad faith pursuant to the Policy.

 

Respondent's at-issue domain name addresses Respondent's <hondatop.com> website. The website feature gaming and gambling content. By using the domain name in this manner Respondent evidences bad faith registration and use of the at-issue domain name. See MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting internet users seeking the complainant's website to its own website for commercial gain because the respondent likely profited from this diversion scheme); see also, Lee Enters., Inc. v. Polanski, FA 135619 (Forum Jan. 22, 2003) ("Respondent is engaged in linking the disputed domain name to advertisements for gambling websites. A finding for bad faith can be made under Policy ¶ 4(b)(iv) when one intentionally misdirects Internet traffic to either gambling pop-up advertisements or gambling websites.").

 

Next, Respondent desires to initially deceive internet users into falsely believing that the domain name and its referenced website are sponsored by Complainant. Respondent's use of the confusingly similar domain name is thus disruptive to Complainant's business and designed to attract internet users to Respondent's website by capitalizing on the confusion Respondent created between its <hondatop.com> domain name and Complainant's HONDA trademark. Respondent's use of the <hondatop.com> domain name thus demonstrates Respondent's bad faith registration and use of <hondatop.com> under Policy ¶ 4(b)(iv)). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Ricky K Wight, FA 1772363 (Forum Mar. 19, 2018) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent linked the domain name <skechersdlites.com>, which is identical to the complainant's mark, to a gambling website).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the HONDA mark when it registered <hondatop.com> as a domain name. Respondent's prior knowledge of Complainant's trademark is evident from the worldwide notoriety of Complainant's HONDA trademark. Respondent's registration and use of a confusingly similar domain name with knowledge of Complainant's rights in HONDA further shows Respondent's bad faith registration and use of <hondatop.com> 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).

 

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 <hondatop.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: March 18, 2024