DECISION

Thrifty, Inc. and Thrifty Rent-a-Car System, Inc. v. Ameriasa

Claim Number: FA0211000133618

PARTIES

Complainant is Thrifty, Inc. and Thrifty Rent-a-Car System, Inc., Tulsa, OK, USA (“Complainant”) represented by David R. Haarz, of Dickinson Wright, PLLC.  Respondent is Ameriasa, Poppel, Ravels, BELGIUM (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <thrifty-car-rental.net>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.

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.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 12, 2002; the Forum received a hard copy of the Complaint on November 14, 2002.

On November 12, 2002, Intercosmos Media Group, Inc.d/b/a Directnic.com confirmed by e-mail to the Forum that the domain name <thrifty-car-rental.net> is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name.  Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.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 November 15, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 5, 2002 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@thrifty-car-rental.net 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 December 19, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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 name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The  <thrifty-car-rental.net> domain name is confusingly similar to Complainant's THRIFTY CAR RENTAL mark.

Respondent has no rights or legitimate interests in the disputed domain name.

Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant is one of the largest car rental companies in the United States and the world.  Complainant rents cars from over 1300 locations in 58 countries and territories.   Complainant owns more than sixteen trademark registrations with the United States Patent and Trademark Office for THRIFTY and THRIFTY CAR RENTAL, including Registration Number 1,566,277.  Complainant also owns trademark registrations in over seventy-five countries including the Benelux countries (Belgium, Luxembourg and the Netherlands) (Reg. No. 427,419), Respondent’s place of domicile.

Respondent registered the disputed domain name on July 12, 2001.  Respondent is using the disputed domain name in order to divert Internet users to <lowest-airfare.com>.  Respondent does not have a license or permission from Complainant to use the THRIFTY CAR RENTAL mark.

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 and draw such inferences it considers appropriate pursuant to paragraph 14(b) 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 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.

Identical and/or Confusingly Similar

Complainant has established that it has rights in the THRIFTY CAR RENTAL mark through registration with the United States Patent and Trademark Office as well as registration in the Benelux countries. 

Respondent’s <thrifty-car-rental.net> domain name is confusingly similar to Complainant’s mark because it incorporates Complainant’s entire mark and merely adds hyphens between the words and the generic top-level domain “.net.”  The addition of hyphens between words does not create any distinct characteristics because Complainant’s mark is still the dominant element of the domain name.  See Easyjet Airline Co. Ltd. v. Harding, D2000-0398 (WIPO June 22, 2000) (finding it obvious that the domain name <easy-jet.net> was virtually identical to Complainant's EASYJET mark and therefore that they are confusingly similar); see also Dollar Fin. Group, Inc. v. Advanced Legal Sys., Inc., FA 95102 (Nat. Arb. Forum Aug. 14, 2000) (finding that the domain name <loan-mart.com> is confusingly similar to Complainant’s mark).

Furthermore, the addition of the generic top-level domain name “.com” does not add any identifying characteristics to the domain name because it is a required feature of all domain names.  Therefore, it is irrelevant when determining whether a domain name is confusingly similar or not.  See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top-level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward with a Response.  Therefore, it is presumed that Respondent has no rights or legitimate interests in the disputed domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  See 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”).

Respondent is using the disputed domain name in order to divert Internet users to <lowest-airfare.com>.  Using Complainant’s mark to divert Internet users to an unconnected website is not considered to be a use in connection with 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 Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); see also N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent used the domain name to divert Internet users to its competing website).

There is no evidence on record that Respondent is known by any other name than Ameriasa.  Respondent has not come forward with any evidence to establish that it is commonly known as THRIFTY-CAR-RENTAL or <thrifty-car-rental.net>, therefore the Panel finds that Respondent has failed to establish that it has any rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent is using a confusingly similar domain name to divert Internet users to <lowest-airfare.com>.  It can be inferred that Respondent is making a profit from the Internet traffic that it is diverting to this website.  Therefore, Respondent is causing a likelihood of confusion for its own commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain).

Based on the fame of Complainant’s mark and its registrations in the Benelux countries where Respondent resides, it can be inferred that Respondent had knowledge of Complainant’s mark before it registered the disputed domain name.  Registration of a domain name, despite actual or constructive knowledge of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii).  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Entrepreneur Media, Inc. v. Smith, [2002] USCA9 115; 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that "[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse").

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby GRANTED.

Accordingly, it is Ordered that the domain name <thrifty-car-rental.net> be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated: December 30, 2002

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