DECISION

Europcar International v Yosi Hasidim

Claim Number: FA0104000097082

PARTIES

Complainant is Europcar International (“Complainant”) represented by Eric Dupont, of Markplus International.  Respondent is Yosi Hasidim, Petah Tikva, Israel (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain names at issue are <europ-car.com> and <europcars.com> registered with Network Solutions, Inc.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

Judge Ralph Yachnin, as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on April 19, 2001; the Forum received a hard copy of the Complaint on April 24, 2001.

On April 20, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <europ-car.com> and <europcars.com> are registered with Network Solutions, Inc. and that Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 April 25, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 15, 2001 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@europ-car.com, and postmaster@europcars.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On May 23, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin as Panelist.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 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 names be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The <europ-car.com> and <europcars.com> domain names are identical and/or confusingly similar to Complainant’s EUROPCAR marks.

Respondent has no rights or legitimate interests in the <europ-car.com> and <europcars.com> domain names.

Respondent registered and used the <europ-car.com> and <europcars.com> domain names in bad faith.

B. Respondent

Respondent did not submit a Response to this matter.

FINDINGS

Complainant, a major international car-rental Company, has registered the EUROPCAR mark in Israel and elsewhere worldwide since January 15, 1979.

Complainant has a commercial web site located at the <europcar.com> domain name, and also owns <europcar.org> and <europcar.net> among many others.

Respondent, a resident of Israel, registered the domain names on November 26, 1999.

Respondent’s only use for the domain names is to link them to the commercial web site <go-travel.com>, which offers travel-related services including car rentals. 

DISCUSSION

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights,

(2) the 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.

Identical and/or Confusingly Similar

Respondent’s domain names are confusingly similar to the Complainant’s EUROPCAR mark.  The domain name <europcars.com> merely adds an “s” to the end of Complainant’s mark and does not avoid being confusingly similar.  See Cream Pie Club v. Halford, FA 95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that “the addition of an "s" to the end of the Complainant’s mark, “Cream Pie” does not prevent the likelihood of confusion caused by the use of the remaining identical mark. The domain name <creampies.com> is similar in sound, appearance, and connotation”).

The domain name <europ-car.com> is also confusingly similar, because the hyphen does not distinguish the domain name from Complainant’s mark.  See Chernow Communications Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark").

Therefore, the Panel concludes that the domain names are confusingly similar to Complainant’s mark, and Complainant has met the burden set forth under Policy 4(a)(i).

Rights or Legitimate Interests

Linking a domain name to a web site that offers services, which compete with those of Complainant, is not a bona fide offering of goods.  See America Online, Inc. v. Xianfeng Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that “[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business”).

Also, because of Complainant’s long-standing use of the mark, it does not seem possible that Respondent is known by a name confusingly similar.  See Victoria’s Secret et al v. Asdak, FA 96542 (Nat. Arb. Forum Feb. 28, 2001) (finding sufficient proof that Respondent was not commonly known by a domain name confusingly similar to Complainant’s VICTORIA’S SECRET mark because of Complainant’s well-established use of the mark).

Lastly, because Respondent linked the domain name to a site that offered commercial services, which competed with Complainant, Respondent’s use of the domain name was neither a legitimate noncommercial use nor a fair use.  See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing web site).

Therefore, the Panel concludes that Respondent does not have any rights or legitimate interests in the domain names, and Complainant has met the burden set forth under Policy 4(a)(ii). 

Registration and Use in Bad Faith

Respondent demonstrated bad faith registration and use by registering a domain name confusingly similar to a famous international mark and linking the domain name to a web site that offers competing services.  See Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has diverted business from the Complainant to a competitor’s website in violation of Policy 4(b)(iii)).

Respondent also exhibited bad faith by intentionally attempting to attract, for commercial gain, Internet users to Respondent’s web site, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the web site and services being provided at the web site.  See Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a web site where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site).

Therefore, the Panel concludes that Respondent registered and used the domain names in bad faith, and Complainant has met the burden set forth under Policy 4(a)(iii).

DECISION

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be granted.

Accordingly, it is Ordered that the <europ-car.com> and <europcars.com> domain names be transferred from Respondent to Complainant.

Honorable Ralph Yachnin

(Retired Judge)

Arbitrator

Dated: May 29, 2001

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