DECISION

 

AM General LLC v. Anything Example

Claim Number: FA2503002143691

 

PARTIES

Complainant is AM General LLC ("Complainant"), United States, represented by Joshua S. Frick of Barnes & Thornburg LLP, United States. Respondent is Anything Example ("Respondent"), United States.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <humveerentalnagshead.com>, registered with GoDaddy.com, LLC.

 

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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on March 6, 2025; Forum received payment on March 6, 2025.

 

On March 6, 2025, GoDaddy.com, LLC confirmed by email to Forum that the <humveerentalnagshead.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 March 7, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 27, 2025 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@humveerentalnagshead.com. Also on March 7, 2025, the Written Notice of the Complaint, notifying Respondent of the email 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 28, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 has used HUMVEE in connection with the sale of vehicles and related products since at least as early as 1983. Complainant owns longstanding United States trademark registrations for HUMVEE in standard character form, along with similar registrations in other jurisdictions around the world.

 

The disputed domain name <humveerentalnagshead.com> was registered in May 2024. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name is being used for a website that purports to offer HUMVEE-branded vehicles for rent. The website prominently displays Complainant's HUMVEE mark and images of HUMVEE vehicles. Complainant alleges that the logo displayed on the website "appears designed to replicate or evoke Complainant's HUMVEE-branded vehicle" to create a false impression of association with Complainant. The website includes a statement attributing ownership of the HUMVEE mark to Complainant and denying any affiliation with Complainant. (Complainant characterizes this statement as "an inconspicuous disclaimer." Based upon the screenshot provided by Complainant and an archived version of the website available on Archive.org, the statement appears in boldface type roughly one third of the way through the main page of the website, or on the second screen as one scrolls through the page.) Complainant notes that its mark is included in neither Respondent's business name, "Off-Road OBX," nor the domain name that Respondent uses for a second website promoting the same services, <offroadobx.com>.

 

Complainant's counsel sent a cease and desist letter to Respondent in July 2024, demanding inter alia that it transfer the disputed domain name to Complainant and compensate Complainant for past infringement. Respondent replied through counsel in August 2024, stating that it rents only HUMVEE-brand vehicles and asserting that its use of the HUMVEE mark qualifies as nominative fair use.

 

Complainant states that Respondent is not commonly known by the domain name, is not associated with Complainant, and is not licensed or otherwise authorized to use Complainant's mark.

 

Complainant contends on the above grounds that the disputed domain name <humveerentalnagshead.com> is confusingly similar to its HUMVEE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights, and that Respondent lacks rights or legitimate interests in respect of the disputed domain name. The Panel further finds that Complainant has failed to sustain its burden of proving that the disputed domain name was registered and is being used in bad faith.

 

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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; UDRP Perspectives on Recent Jurisprudence, §§ 0.2, 0.8 (updated Jan. 15, 2025), available at https://udrpperspectives.org/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").

 

Identical and/or Confusingly Similar

The disputed domain name <humveerentalnagshead.com> incorporates Complainant's registered HUMVEE trademark, adding the generic term "rental," the geographic term "Nags Head," and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., AM General LLC v. Rebecca Smith / HumveeUK, FA 1888214 (Forum Aug. 14, 2020) (finding <humveeuk.com> confusingly similar to HUMVEE); Vanguard Trademark Holdings USA LLC v. Kim Tramontozzi, FA 1567384 (Forum Aug. 30, 2014) (finding <alamoharleyrentals.com> confusingly similar to ALAMO). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

A respondent's use of domain name containing a trademark to promote related goods or services may give rise to rights or legitimate interests where (1) the respondent is actually offering the goods or services at issue; (2) the domain name is being used only for the trademarked goods, and not to bait users and then switch them to other goods; (3) the respondent accurately discloses the relationship (or lack thereof) with the trademark owner; and (4) the respondent does not attempt to corner the market in domain names reflecting the mark. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, supra, § 2.8.1 (citing Oki Data Americas, Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001); UDRP Perspectives on Recent Jurisprudence, supra, § 2.3 (citing Oki Data). Compare Fluke Corp. v. Erwin Bryson / fixmyfluke / Nelson Bryson, FA 1988399 (Forum July 6, 2022) (finding nominative fair use where domain names were used to promote repair services for and resale of complainant's products, with conspicuous disclaimer of affiliation with complainant); Steinway, Inc. v. Carey Simon, FA 1318229 (Forum June 2, 2010) (finding nominative fair use where domain name was used to promote refurbishment and resale of complainant's products while expressly disclaiming affiliation with complainant) with AM General LLC v. Rebecca Smith / HumveeUK, supra (rejecting fair use claim where domain name had been used to promote t-shirts not manufactured or authorized by complainant); Vanguard Trademark Holdings USA LLC v. Kim Tramontozzi, supra (rejecting fair use claim where domain name was used to display links to services of both complainant and its competitors). The respondent may use the mark only to the extent necessary to describe its goods or services, and may not falsely suggest sponsorship or endorsement by the mark owner. See, e.g., Educational Testing Service v. Domain Administrator, See PrivacyGuardian.org / SEEK TOMM, D2022-1424 (WIPO June 3, 2022); AB Electrolux v. roayh net, FA 1791036 (Forum July 6, 2018); Equifax Inc. v. Robert Dow, Warpaint Resources LLC, D2017-1882 (WIPO Dec. 5, 2017).

 

In this case, it seems that Respondent actually and exclusively offers rentals of genuine HUMVEE vehicles while providing an adequate disclosure that it is not affiliated with Complainant. The fact that the vehicles offered by Respondent are represented to be genuine HUMVEE vehicles appears to be a key aspect of its business, at least arguably making the use of the mark necessary to describe Respondent's services. It does not appear to the Panel that Respondent is making gratuitous use of the mark beyond the extent needed for that purpose.

 

The Panel emphasizes that the scope of its consideration of these issues is constrained by the streamlined procedure provided by the Policy, which contemplates that legitimate disputes be relegated to the courts. See Second Staff Report on Implementation Documents for the Uniform Domain Dispute Resolution Policy, § 4.1(c) (Oct. 24, 1999), available at http://archive.icann.org/en/udrp/udrp-second-staff-report-24oct99.htm; e.g., Charles Schwab & Co., Inc. v. Simon Schwab, FA 2017845 (Forum Jan. 23, 2023) (citing Second Staff Report); Amity Holdings, LLC v. Pallis Press / Woratanat Ratchatanyatorn / Mehmet Mehliz / oyunstore.com / aydın dedeoğlu, FA 1923893 (citing Second Staff Report).

 

The Panel notes that Respondent may have ceased use of the disputed domain name and possibly its related business activities since the date on which the Complaint in this proceeding was submitted. The website formerly associated with the domain name appears to have been taken down, as has the other website that Complainant alleges is associated with Respondent, and related pages on two social media platforms appear to have been dormant for at least the past several months. Furthermore, Respondent engaged legal counsel in August 2024 to respond to Complainant's cease and desist letter, but has declined to participate in this proceeding.

 

It is therefore unclear whether Respondent currently has any rights or legitimate interests in respect of the disputed domain name. Complainant has made a prima facie case that Respondent lacks such rights or interests, and Respondent has failed to come forward with any evidence to the contrary. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.

 

Registration and Use in Bad Faith

Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."

 

It appears that Respondent registered the disputed domain name for use in connection with a bona fide business offering rentals of genuine HUMVEE vehicles, under circumstances likely qualifying as a nominative fair use of Complainant's mark. The fact that the domain name is registered in the name of a privacy registration service is relevant but only minimally probative of bad faith. See SidePrize, LLC d/b/a PrizePicks v. Copamar Partners / Copamar Partners, S.L., FA 2141536 (Forum Mar. 19, 2025) (noting that some registrars routinely substitute the name of a privacy registration service in domain name registration records).

 

In light of the above, and mindful of the limited scope of this proceeding, the Panel finds that Complainant has failed to prove that the disputed domain name was registered and is being used in bad faith.

 

DECISION

Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <humveerentalnagshead.com> domain name REMAIN WITH Respondent.

 

 

 

David E. Sorkin, Panelist

Dated: March 28, 2025