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Generic Top Level Domain Name (gTLD) Decisions |
Dollar Rent A Car Systems, Inc. v.
Patrick Ory
Claim Number: FA0204000112560
PARTIES
Complainant
is Dollar Rent A Car Systems, Inc.,
Tulsa, OK, USA (“Complainant”) represented by David R. Haarz, of Dickinson
Wright, PLC. Respondent is Patrick Ory, Cancun, MEXICO
(“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <dollar-carrental.com>,
registered with Joker.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 April 29, 2002; the Forum received
a hard copy of the
Complaint on May 3, 2002.
On
April 30, 2002, Joker.com confirmed by e-mail to the Forum that the domain name
<dollar-carrental.com> is
registered with Joker.com and that Respondent is the current registrant of the
name. Joker.com has verified that
Respondent is bound by the Joker.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
May 3, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of May 23,
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@dollar-carrental.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
June 5, 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
<dollar-carrental.com> domain name is confusingly similar to
Complainant’s DOLLAR and DOLLAR RENT A CAR marks (Complainant’s family of
DOLLAR marks).
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
did not submit a Response in this proceeding.
FINDINGS
Complainant’s vehicle rental business was
founded in 1965 and has grown to almost 300 service locations in the United
States, Mexico,
and Canada. Complainant
does business in fifty of the largest United States airport markets.
Complainant owns twenty trademark
registrations in the United States for marks containing the term DOLLAR, five
of which also include
the word “car”
(e.g., Reg. Nos. 948,360 for DOLLAR and
2,110,019 for DOLLAR RENT A CAR).
Complainant has spent a significant amount of money promoting and
advertising its DOLLAR marks, resulting in the marks being associated
with Complainant’s
vehicle rental services. Complainant
also owns registrations for the DOLLAR mark in more than eighty-five foreign
countries. Furthermore, Complainant
currently operates a website at <dollar.com>, which it uses to conduct
vehicle rental business.
Respondent registered the <dollar-carrental.com>
domain name on February 2, 2001.
Respondent uses the domain name to divert Internet traffic to
<cheapcarrental.com>.
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 the Respondent is identical or confusingly
similar to a trademark or service mark in which the Complainant
has rights; and
(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 name merely adds the
generic descriptor “carrental” to Complainant’s DOLLAR mark. In addition, the generic descriptor is
comprised of “car” and “rental,” which are synonymous with Complainant’s business. The incorporation of such words with
Complainant’s entire DOLLAR mark does not defeat a confusing similarity claim;
thus, Respondent’s
domain name is confusingly similar to Complainant’s family
of DOLLAR marks. See Marriott Int’l v. Café au lait, FA
93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the Respondent’s domain
name <marriott-hotel.com> is confusingly similar
to Complainant’s
MARRIOTT mark); see also Brown & Bigelow, Inc. v. Rodela,
FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the
<hoylecasino.net> domain name is confusingly similar to Complainant’s
HOYLE mark, and that the addition of “casino,” a generic word describing the
type of business in which Complainant is engaged, does
not take the disputed
domain name out of the realm of confusing similarity); see also Space Imaging LLC v.
Brownwell,
AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the
Respondent’s domain name combines the Complainant’s
mark with a generic term
that has an obvious relationship to the Complainant’s business).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant has demonstrated its rights
to and interests in the DOLLAR and DOLLAR RENT A CAR marks. Because Respondent
has not submitted
a Response in this proceeding, the Panel may presume it has
no such rights or 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
Vertical Solutions Mgmt., Inc. v.
Webnet-marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure
to respond allows all reasonable inferences of fact in the allegations of
Complainant
to be deemed true).
Respondent uses the domain name, which is
confusingly similar to Complainant’s family of DOLLAR marks, to route Internet
users, trying
to reach Complainant’s competing website, to
<cheapcarrental.com>. This use
does not meet the requirements of Policy ¶¶ 4(c)(i) and (iii). 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 website); see also Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21,
2000) (finding that the disputed domain names were confusingly similar to
Complainant’s mark and that
Respondent’s use of the domain names to sell
competing goods was illegitimate and not a bona fide offering of goods).
Respondent is not commonly known as DOLLAR-CARRENTAL
or <dollar-carrental.com> and is only known by this Panel as
Patrick Ory. Therefore, Respondent does
not meet the requirements of Policy ¶ 4(c)(ii). See Great S. Wood Pres., Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000)
(finding that Respondent was not commonly known by the domain name
<greatsouthernwood.com>
where Respondent linked the domain name to
<bestoftheweb.com>); see also 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).
Accordingly, the Panel finds that Policy
¶4(a)(ii) has been satisfied.
Respondent registered and used <dollar-carrental.com>,
for commercial gain, to attract Internet users to <cheapcarrental.com>,
which provides services similar to Complainant’s business;
thus, creating a
likelihood of confusion with Complainant’s family of DOLLAR marks. Respondent’s actions constitute bad faith
under Policy ¶ 4(b)(iv). See Busy Body, Inc. v. Fitness Outlet, Inc.,
D2000-0127 WIPO Apr. 22, 2000) (finding bad faith where Respondent attempted to
attract customers to its website, <efitnesswholesale.com>,
and created
confusion by offering similar products for sale as Complainant); see also
Fanuc Ltd v. Mach. Control Serv., FA
93667 (Nat. Arb. Forum Mar. 13, 2000) (finding that Respondent violated Policy
¶ 4(b)(iv) by selling used Fanuc parts and robots
on website <fanuc.com>
because customers visiting the site were confused as to the relationship
between the Respondent and
Complainant).
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
should be hereby
granted.
Accordingly, it is Ordered that the <dollar-carrental.com>
domain name be transferred from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 10, 2002
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