Vanguard Trademark Holdings USA LLC v. TUGCE YURDAGUL CID1074725 stdfrr 75tue5 c/o TUGCE YURDAGUL
Claim Number: FA1402001542627
Complainant is Vanguard Trademark Holdings USA LLC (“Complainant”), represented by David R. Haarz of Harness, Dickey & Pierce, PLC., Virginia, USA. Respondent is TUGCE YURDAGUL CID1074725 stdfrr 75tue5 c/o TUGCE YURDAGUL (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nationalcarrental-car.com>, registered with FBS Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Ceylin Beyli as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 7, 2014; the National Arbitration Forum received payment on February 7, 2014. The Complaint was received in both Turkish and English.
On February 12, 2014, FBS Inc. confirmed by e-mail to the National Arbitration Forum that the <nationalcarrental-car.com> domain name is registered with FBS Inc. and that Respondent is the current registrant of the name. FBS Inc. has verified that Respondent is bound by the FBS 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 14, 2014, the Forum served the Turkish language Complaint and all Annexes, including a Turkish language Written Notice of the Complaint, setting a deadline of March 6, 2014 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@nationalcarrental-car.com. Also on February 14, 2014, the Turkish language 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 formal response from Respondent but only an e-mail message dated February 19, 2014, explaining that the Respondent acquired the domain name only because it was available and for hobby purposes without any commercial target, and that she is willing to transfer the domain to the Complainant for she does not wish to act illegally, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 13, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Ceylin Beyli 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" 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, 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
The Complainant makes the following contentions:
· The disputed domain name identically includes Complainant’s NATIONAL trademark as the distinctive element, and “carrental-car” merely serves as a descriptive part of the domain for car rental services along with “.com” as global Top Level Domain. Also, the Complainant is the lawful owner of the trademarks NATIONAL and NATIONAL CAR RENTAL in the USA and in Turkey.
· The respondent has no rights of legitimate interests in the disputed domain name. The sample blog at the disputed domain name is a content farm, so it serves to attract Internet users searching for National Car Rental on Internet search engines and then redirect them to the wRock.org webpage when they click on the link.
· The Respondent registered and is using the disputed domain name in bad faith, for the disputed domain name is serving to drive Internet traffic to another website offering goods and services unrelated to Complainant, but by using Complainant’s trademarks thus profiting from them.
B. Respondent
Respondent failed to submit a formal Response or any evidence in this proceeding. In her only e-mail message dated February 19, 2014, the Respondent explained that she acquired the domain name only because it was available and for hobby purposes without any commercial target, and that she is willing to transfer the domain to the Complainant for she does not wish to act illegally.
The Panel noted the Complainant’s exhibits, confirming their ownership on the NATIONAL and NATIONAL CAR RENTAL marks as well as the domain name nationalcarrental.com, resolving to the National Car Rental homepage.
The Panel noted that the disputed domain name was created on December 20, 2013 by the Respondent, and that the Complainant acted against this domain name on February 7, 2014 by filing this Complaint.
The Panel noted that the Respondent did not file a formal Response or any evidence in this proceeding, but in her only e-mail message dated February 19, 2014, the Respondent explained to have acquired the domain name only because it was available and for hobby purposes without any commercial target, and that she is willing to transfer the domain to the Complainant for she does not wish to act illegally.
Although it could be more preferable for the Panel to forego the traditional UDRP analysis and order an immediate transfer of the disputed domain name to the Complainant based on the Respondent’s above mentioned reply; the Panel concluded that the Complainant did not implicitly consent in its Complaint to the transfer of the disputed domain name without a decision on the merits. In this respect, the Panel decided to analyse the case under the elements of the UDRP.
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(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.”).
There is no doubt that NATIONAL and NATIONAL CAR RENTAL are trademarks of the Complainant and they are directly connected with the Complainant’s activities in the rental car services. The Complainant’s exhibits annexed to its Complaint refer to trademark registrations in the USA and in Turkey, going back as early as 1980’s.
The trademarks NATIONAL and NATIONAL CAR RENTAL are wholly encompassed within the disputed domain name.
The fact that CAR RENTAL and the addition of “-car” may be interpreted as non-distinctive for car rental services when used on their own, their use alongside NATIONAL trademark does not prevent the disputed domain name from being confusingly similar to the Complainant’s mentioned trademarks. Internet users could be confused into thinking that the disputed domain name was associated with the Complainant.
Furthermore, the addition of a generic top-level domain extension such as “.com” is irrelevant when determining whether a domain name is confusingly similar to a registered trademark.
As a result, the Panel finds the disputed domain name to be confusingly similar to the Complainant’s trademarks, and that the Complainant has satisfied the first element of the Policy.
Paragraph 4(c) of the Policy provides some examples without limitation of how a respondent can demonstrate a right or legitimate interest in a domain name:
· Before receiving any notice of the dispute, the respondent used or made demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services; or
· The respondent has been commonly known by the domain name; or
· The respondent is making a legitimate non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue.
Based on the Respondent’s lack of substantial formal Response or evidences in this case, the Panel finds that the above circumstances are not present in this particular case and that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has not licensed nor authorized the use of its trademark to the Respondent, and there is no indication that the Respondent is commonly known by the disputed domain name.
In her only e-mail message dated February 19, 2014, the Respondent explained to have acquired the domain name only because it was available and for hobby purposes without any commercial target, and that she is willing to transfer the domain to the Complainant for she does not wish to act illegally. However, upon review of the evidences, the Panel finds that these allegations may not be the truth, for there is no indication that the disputed domain name was indeed a hobby site. Indeed, the webpage that is published at the disputed domain name reproduces the Complainant’s NATIONAL trademark and logo in connection with car rental services. Although there seems to be no services introduced by the Respondent, the Panel find that such use clearly do not provide the Respondent with rights or legitimate interests in the disputed domain name.
Consequently, the Panel is satisfied that the Complainant has proven the second element of the Policy.
Paragraph 4(b) of the Policy states that the following circumstances in particular, but without limitation, shall be evidence of registration and use of a domain name in bad faith:
· Circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
· The respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conducts; or
· The respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
· By using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement or its website or location or of a product or service on its website or location.
The website published at the disputed domain name includes many referrals to and visuals of Complainant’s NATIONAL trademarks and there are no indications on the website, whatsoever, to show that this is indeed a hobby site. Indeed, Respondent’s webpage at the disputed domain name contains large amounts of virtually meaningless textual content, which may well be designed to satisfy algorithms for maximum retrieval by automated search engines, as the Complainant argues. Noting the wide recognition the Complainant enjoys in Turkey with their NATIONAL and NATIONAL CAR RENTAL trademarks, the Panel concludes that the Respondent is or at least should be aware of the Complainant and NATIONAL trademarks. Indeed, in her e-mail of February 19, 2014, the Respondent do not deny her acknowledgement on the Complainant and NATIONAL trademarks.
In a similar case and decision having Mattel, Inc. v. Sharone Bertolini, FA 128820 (Nat. Arb. Forum December 26, 2002), the respondent used the <americanbarbieclub.com> and <australianbarbieclub.com> domain names to resolve to a hobby website where respondent advertised toys she no longer wished to have in her collection. The respective panel held that merely being a fan of trademarked goods or services and setting up a “fan club” website is not sufficient to give a respondent rights or legitimate interests in a domain name that predominantly features the trademark registered and owned by another. The respective panel also found that respondent registered and was using the domain names in bad faith because respondent was aware of complainant and its mark when respondent registered the disputed domain names. The panel also argued that respondent intended to attract Internet users to its resolving website for commercial gain by causing confusion as to complainant’s affiliation with respondent’s website.
In this respect, for the current Complaint, the Panel finds that the Respondent is trying to influence search engine rankings by using low quality content that ranks highly because it is well keyword-targeted so it will be ranked by search engines, and then places a link to the website at wRock.org to drive Internet traffic to that website and presumably generate revenue for the Respondent. Therefore, in doing so, the Respondent intentionally attempts to attract the Complainant’s potential consumers to its website; creates a likelihood of confusion with the Complainant’s mark as to the source of its website; and deprives the Complainant from its rightful exploitation of their trademarks and presence on the web.
Accordingly, the Panel finds that the Complainant has proved that the disputed domain name was registered and is being used in bad faith, satisfying the third element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nationalcarrental-car.com> domain name be TRANSFERRED from Respondent to Complainant.
Ceylin Beyli, Panelist
Dated: APRIL 02, 2014
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