DECISION

Europcar International v. EU-Neufahrzeugvermittlung

Claim Number:  FA0301000142134

PARTIES

Complainant is Europcar International, Saint Quentin en Yvelines, FRANCE (“Complainant”) represented by Corinne Allard, of Markplus International. Respondent is Ruediger Hoins EU-Neufahrzeugvermittlung, Buchholz, GERMANY (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <europe-cars.org>, registered with Schlund+partner Ag.

PANEL

On February 19, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist.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.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 17, 2003; the Forum received a hard copy of the Complaint on January 20, 2003.

On January 22, 2003, Schlund+partner Ag confirmed by e-mail to the Forum that the domain name <europe-cars.org> is registered with Schlund+partner Ag and that Respondent is the current registrant of the name. Schlund+partner Ag has verified that Respondent is bound by the Schlund+partner Ag 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 January 23, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 12, 2003 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@europe-cars.org 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.

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 makes the following assertions:

1. Respondent’s <europe-cars.org> domain name is confusingly similar to Complainant’s EUROPCAR mark.

2. Respondent does not have any rights or legitimate interests in the <europe-cars.org> domain name.

3. Respondent registered and used the <europe-cars.org> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant holds numerous marks for EUROPCAR registered nationally and internationally. Complainant uses the marks in relation to its international car rental business. Complainant has registered a number of websites that direct Internet users to its main website, <europcar.com>.

Respondent registered the <europe-cars.org> domain name on March 13, 2001. Respondent is using the disputed domain name to redirect Internet traffic to <www.car4you.de>, a website that features the selling and leasing of automobiles.

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 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 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 rights in the EUROPCAR mark through international registration and continuous use of the mark since 1949.

Respondent’s <europe-cars.org> domain name is confusingly similar to Complainant’s mark because the disputed domain name incorporates Complainant’s entire mark and merely adds an “e,” a hyphen and an “s.” The addition of the “e” and the “s” do not prevent Complainant’s mark from remaining the dominant feature of the disputed domain name. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the Complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it). Similarly, the addition of the hyphen is not sufficient to differentiate the <europe-cars.org> domain name from Complainant’s EUROPCAR mark. See Teleplace, Inc. v. De Oliveira, FA 95835 (Nat. Arb. Forum Dec. 4, 2000) (finding that the domain names <teleplace.com>, <tele-place.com>, and <theteleplace.com> are confusingly similar to Complainant’s TELEPLACE trademark); see also InfoSpace.com v. Tenenbaum Ofer, D2000-0075 (WIPO Apr. 27, 2000) (finding that “[t]he domain name ‘info-space.com’ is identical to Complainant’s INFOSPACE trademark. The addition of a hyphen and .com are not distinguishing features”).

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

Rights or Legitimate Interests

Respondent has failed to submit a Response in this proceeding. Thus, the Panel is permitted to accept all reasonable allegations and inferences in the Complaint as true. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Moreover, Respondent has failed to invoke any circumstances that could demonstrate rights or legitimate interests in the disputed domain name. When Complainant asserts a prima facie case against Respondent, the burden of proof shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because the Respondent never submitted a response nor provided the Panel with evidence to suggest otherwise); see also Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (drawing two inferences based on the Respondent’s failure to respond: (1) the Respondent does not deny the facts asserted by the Complainant, and (2) the Respondent does not deny conclusions which the Complainant asserts can be drawn from the facts).

Respondent is using the <europe-cars.org> domain name primarily to divert Internet users to <www.car4you.com>. This type of use is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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); see also AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding that use of the domain name to direct users to other, unconnected websites does not constitute a legitimate interest in the domain name).

Respondent has submitted no evidence to establish that it is commonly known as EUROPE CARS or <europe-cars.org>. Therefore, Respondent has failed to meet its burden by establishing that it has 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 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>).

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

Registration and Use in Bad Faith

Respondent is using the <europe-cars.org> domain name to divert Internet users to <www.car4you.com>, a commercial website. The Panel may infer that Respondent is profiting from the Internet traffic created by this diversion. Thus, Respondent is using a confusingly similar domain name to confuse Internet users for Respondent’s commercial benefit. This type of use 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 G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to attract Internet users to its commercial website).

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

DECISION

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

Accordingly, it is Ordered that the <europe-cars.org> domain name be TRANSFERRED from Respondent to Complainant.

                                                James P. Buchele, Panelist

                                                Dated: February 24, 2003

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