Thrifty, Inc. v. Hong Qian d/b/a Qian Web
Create (Under Development)
Claim
Number: FA0508000542388
Complainant is Thrifty, Inc. (“Complainant”),
represented by Nicole M. Meyer, of Dickinson Wright, PLLC,
1901 L Street, N.W., Suite 800, Washington, DC. 20036-3506. Respondent is Hong Qian d/b/a Qian Web Create (Under Development) (“Respondent”), Haidianqu Langqiuyuan,
1-12-102, Beijing, Beijing, CN 100083.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <wwwthrifty.com>, registered with Affordable
Computer Solutions, Inc. d/b/a www.Afforda.com.
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.
John
J. Upchurch as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on August
17, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 18, 2005.
On
August 17, 2005, Affordable Computer Solutions, Inc. d/b/a www.Afforda.com
confirmed by e-mail to the National Arbitration Forum that the <wwwthrifty.com>
domain name is registered with Affordable Computer Solutions, Inc. d/b/a
www.Afforda.com and that Respondent is the current registrant of the name. Affordable
Computer Solutions, Inc. d/b/a www.Afforda.com has verified that Respondent is
bound by the Affordable Computer Solutions, Inc. d/b/a www.Afforda.com registration
agreement and has thereby agreed to resolve domain-name disputes brought by
third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution
Policy (the "Policy").
On
August 26, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 15, 2005 by which Respondent could file a response to the Complaint,
was transmitted to Respondent via e-mail, post and fax, to all entities and
persons listed on Respondent's registration as technical, administrative and
billing contacts, and to postmaster@wwwthrifty.com by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
September 21, 2005, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the National Arbitration Forum appointed John
J. Upchurch 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." 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wwwthrifty.com>
domain name is confusingly similar to Complainant’s THRIFTY mark.
2. Respondent does not have any rights or
legitimate interests in the <wwwthrifty.com> domain name.
3. Respondent registered and used the <wwwthrifty.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Thrifty, Inc., through its wholly-owned subsidiary, Thrifty Rent-A-Car System,
Inc. is one of the largest vehicle rental companies in the United States and
the world. Complainant rents cars and
other vehicles from more than 1,100 locations in 64 countries and territories
throughout North, Central and South America, Africa, Europe, the Middle East
and Asia. Complainant has adopted and
promoted the THRIFTY and THRIFTY RENT A CAR marks in connection with
advertising its automobiles.
Complainant’s
operates a website at the <thrifty.com> domain name, and uses it in
connection with its vehicle rental business by providing online car rental
services and a computer database relating to travel and car rentals. Complainant also owns registrations for the
<thrifty.com>, <thriftyrentacar.com>, <thriftyrentalcar.com>,
and <thriftycarrental.com> domain names.
Complainant owns
more than twenty-five trademark registrations in the United States for the
THRIFTY mark (e.g., Reg. No. 816,350, issued October 4, 1966). Complainant also owns trademark
registrations for the THRIFTY mark in more than seventy-five foreign countries,
including the European Community and the Benelux countries.
Respondent
registered the disputed domain name on January 16, 2004 and is using the domain
name to redirect Internet users to a website that hosts a search engine that
provides links to a variety of websites and features various car rental-related
services.
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."
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.”).
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.
Complainant
asserts that it has established rights in the THRIFTY mark through registration
with the USPTO. See Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003)
(“Complainant's federal trademark registrations establish Complainant's rights
in the BLIZZARD mark.”); see also Innomed Techs., Inc.
v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”).
Moreover, the <wwwthrifty.com>
domain name is confusingly similar to Complainant’s THRIFTY mark because
the domain name incorporates Complainant’s mark in its entirety with the
typographically omission of a period between “www” and “thrifty.com.” The use of a typographical error does not
distinguish the domain name from Complainant’s THRIFTY mark. See Bank of Am. Corp. v. InterMos, FA
95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name
<wwwbankofamerica.com> is confusingly similar to the complainant’s
registered trademark BANK OF AMERICA because it “takes advantage of a typing
error (eliminating the period between the www and the domain name); see also
Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding
that the letters "www" are not distinct in the "Internet
world" and thus the respondent 's <wwwmarieclaire.com> domain name
is confusingly similar to the complainant's MARIE CLAIRE trademark); see
also Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat.
Arb. Forum Nov. 19, 2002) (finding the respondent's <wwwdana.com> domain
name confusingly similar to the complainant's registered DANA mark because the
complainant's mark remains the dominant feature).
Furthermore, the
addition of the generic top-level domain “.com” does not negate the confusingly
similar aspects of Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti,
D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the
complainant’s mark because the generic top-level domain (gTLD) “.com” after the
name POMELLATO is not relevant); see also Blue Sky Software Corp. v. Digital
Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name
<robohelp.com> is identical to the complainant’s registered ROBOHELP
trademark, and that the "addition of .com is not a distinguishing
difference"); see also Victoria's Secret v. Hardin, FA 96694 (Nat
Arb. Forum Mar. 31, 2001) (finding that the <bodybyvictoria.com> domain
name is identical to the complainant’s BODY BY VICTORIA mark).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Complainant
asserts that Respondent does not have rights or legitimate interests in the <wwwthrifty.com>
domain name. When a complainant
establishes a prima facie case
pursuant to Policy ¶ 4(a)(ii), the burden shifts to the respondent to prove
that it has rights or legitimate interests.
Due to Respondent’s failure to respond to the Complaint, the Panel
infers that Respondent does not have rights or legitimate interests in the
disputed domain name. See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (finding that once the complainant asserts that
the respondent does not have rights or legitimate interests with respect to the
domain, the burden shifts to the respondent to provide credible evidence that
substantiates its claim of rights or legitimate interests in the domain name); see also Clerical Med. Inv. Group Ltd. v.
Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under
certain circumstances, the mere assertion by the complainant that the
respondent does not have rights or legitimate interests is sufficient to shift
the burden of proof to the respondent to demonstrate that such rights or
legitimate interests do exist); see also
Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000)
(finding that by not submitting a response, the respondent has failed to invoke
any circumstance which could demonstrate any rights or legitimate interests in
the domain name).
Moreover,
Respondent is not commonly known by the <wwwthrifty.com> domain
name. Thus, the Panel concludes that
Respondent has not established rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c)(ii).
See Compagnie de Saint Gobain v.
Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or
legitimate interest where respondent was not commonly known by the mark and
never applied for a license or permission from complainant to use the
trademarked name); see also Broadcom
Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001)
(finding no rights or legitimate interests because respondent is not commonly
known by the disputed domain name or using the domain name in connection with a
legitimate or fair use); see also Hartford
Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29,
2000) (finding that respondent has no rights or legitimate interests in domain
names because it is not commonly known by complainant’s marks and respondent
has not used the domain names in connection with a bona fide offering of
goods and services or for a legitimate noncommercial or fair use).
Furthermore,
Respondent is using the <wwwthrifty.com> domain name to operate a
search engine website featuring commercial links to various third-party
websites, through which Respondent presumably receives referral fees. Thus, the Panel finds that Respondent’s use
of a domain name that is confusingly similar to Complainant’s mark to divert
Internet users to third-party websites for Respondent’s own commercial gain
does not constitute 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). See TM Acquisition Corp. v. Sign Guards, FA
132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that respondent’s diversionary
use of complainant’s marks to send Internet users to a website which displayed
a series of links, some of which linked to competitors of complainant, was not
a bona fide offering of goods or services); see also Yahoo! Inc. v. Web Master, FA 127717
(Nat. Arb. Forum Nov. 27, 2002) (finding that the respondent’s use of a
confusingly similar domain name to operate a pay-per-click search engine, in
competition with the complainant, was not a bona fide offering of goods
or services); see also Toronto-Dominion
Bank v. Karpachev, 188 F.Supp.2d
110, 114 (D. Mass. 2002) (finding that, because the
respondent's sole purpose in selecting the domain names was to cause confusion
with the complainant's website and marks, its use of the names was not in
connection with the offering of goods or services or any other fair use).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
The Panel infers
that Respondent receives click-through fees for diverting Internet users to
various commercial websites. Respondent registered and used the disputed
domain name in bad faith under Policy ¶ 4(b)(iv) as Respondent is using the <wwwthrifty.com>
domain name to intentionally
attract, for commercial gain, Internet users to its website, by creating a
likelihood of confusion with Complainant as to the source, sponsorship,
affiliation or endorsement of its website. See H-D Michigan, Inc. v. Petersons Auto, FA 135608 (Nat.
Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered
and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s
registration and use of the infringing domain name to intentionally attempt to
attract Internet users to its fraudulent website by using the complainant’s
famous marks and likeness); see also G.D. Searle & Co. v. Celebrex
Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the
respondent registered and used the domain name in bad faith pursuant to Policy
¶ 4(b)(iv) because the respondent was using the confusingly similar domain name
to attract Internet users to its commercial website).
Furthermore,
Respondent is using the <wwwthrifty.com> domain name, which
contains Complainant’s THRIFTY mark, to redirect Internet users to a website
featuring links to websites advertising rental car-related services that
compete with Complainant’s business.
This suggests that Respondent had actual knowledge of Complainant’s
rights in the mark when it registered the domain names and chose the disputed
domain name based on the goodwill Complainant has acquired in its THRIFTY
mark. Respondent’s registration of a
domain name containing Complainant’s mark in spite of Respondent’s actual
knowledge of Complainant’s rights in the mark is evidence of bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA
94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith
includes actual or constructive knowledge of a commonly known mark at the time
of registration); see
also Pfizer, Inc. v. Suger,
D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the
complainant’s mark and the content advertised on the respondent’s website was
obvious, the respondent “must have known about the Complainant’s mark when it
registered the subject domain name”).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <wwwthrifty.com> domain name be TRANSFERRED
from Respondent to Complainant.
John
J. Upchurch, Panelist
Dated: October 5, 2005
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