DECISION

Dollar Rent A Car, Inc. v. Rob Smith d/b/a Ameriasa

Claim Number:  FA0404000257706

PARTIES

Complainant is Dollar Rent A Car, Inc. (“Complainant”), represented by Nicole M. Meyer, of Dickinson Wright, PLLC, Suite 800, 1901 L Street NW, Washington, DC 20036-3506.  Respondent is Rob Smith d/b/a Ameriasa (“Respondent”), Tilburgseweg 105, Poppel, Ravels 2382, BE.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <dollar-car-rental.org>, registered with Intercosmos d/b/a Direct NIC.com.

PANEL

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.

James A. Crary as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 20, 2004; the Forum received a hard copy of the Complaint on April 21, 2004.

On April 21, 2004, Intercosmos d/b/a Direct NIC.com confirmed by e-mail to the Forum that the domain name <dollar-car-rental.org> is registered with Intercosmos d/b/a Direct NIC.com and that Respondent is the current registrant of the name. Intercosmos d/b/a Direct NIC.com has verified that Respondent is bound by the Intercosmos d/b/a Direct NIC.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 April 23, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 13, 2004 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-car-rental.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.

On May 27, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Crary 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 makes the following assertions:

1. Respondent’s <dollar-car-rental.org> domain name is confusingly similar to Complainant’s DOLLAR RENT A CAR mark.

2. Respondent does not have any rights or legitimate interests in the <dollar-car-rental.org> domain name.

3. Respondent registered and used the <dollar-car-rental.org> domain name in bad faith.

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

FINDINGS

Complainant is the owner of trademark registration number 2,110,019, issued June 14, 1988 by the United States Patent and Trademark Office (“USPTO”), for the mark DOLLAR RENT A CAR.  The mark is used in connection with automobile, truck and recreational vehicle renting and leasing, parking lot services, and transportation by limousine or bus.

Complainant owns and operates a website at the <dollar.com> domain name where it provides online vehicle rental services and a computer database relating to travel and vehicle rentals, as well as information relating to rental locations, vehicle availability, rates and reservations, as well as the making, confirmation and cancellation of reservations.

Respondent registered the disputed domain name <dollar-car-rental.org> on July 14, 2002.  Respondent is using the domain name to direct Internet users to a website named “Lowest-Airfare.com.”  The website contains links to a variety of automobile rental companies such as “Alamo,” “Avis,” “Budget,” “Hertz,” as well as Complainant’s company “Dollar.”  Respondent has used the logos of each of these companies, including Complainant, on its website.   

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 registered its DOLLAR RENT A CAR mark with the USPTO.  The registration of a mark with a governmental authority is sufficient under the Policy to confer rights in a mark to a complainant.  Therefore, Complainant has established rights in the DOLLAR RENT A CAR mark.  See Mayers Enter. Inc. v. 5 Dollar Hosting, FA 146945 (Apr. 21, 2003) (finding that complainant established rights in a mark as a result of registering the mark on the Principal Register of the U.S. Patent and Trademark Office, as well as through use of the mark in commerce); see also Am. Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful trademark registration with the United States Patent and Trademark Office creates a presumption of rights in a mark).

Respondent has merely inverted the predominant portions of Complainant’s DOLLAR RENT A CAR mark in the disputed domain name.  Inverting terms of a mark fails to dispel the confusing similarity between a domain name and the mark under the Policy.  See NCRAS Mgmt., LP v. Cupcake City, D2000-1803 (WIPO Feb. 26, 2001) (finding the domain name <nationalrentalcar.com> confusingly similar to the mark NATIONAL CAR RENTAL and holding that “merely inverting the terms of a mark . . . is insufficient to dispel consumer confusion; the mark and the resulting domain name are simply too similar to each other”); see also Toronto Convention & Visitors Ass’n v. This Domain is For Sale, D2001-1463 (WIPO Feb. 25, 2002) (finding that there would be no reason to distinguish between <tourismtoronto.com> and TORONTO TOURISM); see also Reed Elsevier Prop. Inc. v. Weekly Publishers, FA 151536 (Nat. Arb. Forum May 5, 2003) (“Inverting or transposing words in a trademark is not sufficient to avoid confusing similarity because the two words create the same commercial impression and meaning.”).

Moreover, Respondent has added hyphens as spacing devices within the disputed domain name.  The addition of hyphens in domain names is irrelevant under the Policy in determining whether or not a domain name is confusingly similar to a third party’s trademark or service mark.  See Chernow Communications Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (“[T]he use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark."); see also Teradyne Inc. v. 4Tel Tech., D2000-0026 (WIPO May 9, 2000) (“[The] addition of a hyphen to the registered mark is an insubstantial change. Both the mark and the domain name would be pronounced in the identical fashion, by eliminating the hyphen."); see also InfoSpace.com v. Ofer, D2000-0075 (WIPO Apr. 27, 2000) (“The domain name ‘info-space.com’ is identical to Complainant’s INFOSPACE trademark. The addition of a hyphen and .com are not distinguishing features.”); see also Albertson’s, Inc. v. Bennett, FA 117013 (Nat. Arb. Forum Sept. 5, 2002) (“[T]he absence of a space and the hyphen between the words of the mark are not changes that are capable of overcoming a Policy 4(a)(i) identical analysis.”).

Therefore, Complainant has established that the disputed domain name is confusingly similar to Complainant’s DOLLAR RENT A CAR mark pursuant to Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent’s failure to respond to the Complaint allows the inference that Respondent lacks rights to and legitimate interests in the disputed domain name. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because Respondent never submitted a Response nor provided the Panel with evidence to suggest otherwise); see also Am. Express Co. v. Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Broadcom Corp. v. Createmutex, FA 128711 (Nat. Arb. Forum Dec. 16, 2002) (“Respondent's failure to Respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).

The record indicates that Respondent is commonly known by either Ameriasa, which is the organization Respondent registered the disputed domain name under, or “Lowest-Airfare.com,” which is the name of the website Respondent has attached to the disputed domain name.  Expressio unius est exclusio alterius.  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name <dollar-car-rental.org> pursuant to Policy ¶ 4(c)(ii).  See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (“Respondent is doing business as 'Sunset Camera' and 'World Photo Video & Imaging Corp.' not 'aolcamera(s),' and therefore, Respondent is not commonly known as <aolcamera.com > or <aolcameras.com > pursuant to Policy 4(c)(ii).”); see also Brown v. Sarrault, FA 99584 (Nat. Arb. Forum Oct. 16, 2001) (“Respondent is not commonly known by the disputed domain name, but is doing business under the name 'Mobility Connections.’”).

Furthermore, Respondent is using a domain name confusingly similar to Complainant’s DOLLAR RENT A CAR mark to advertise a variety of automobile rental companies, including Complainant.  Using a domain name confusingly similar to a third party’s mark to advertise goods or services that compete with those offered by the third party under its mark is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  See DLJ Long Term Investment Corp. v. Bargaindomainnames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Oregon State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and sale of law-related books under Complainant's name is not a bona fide offering of goods and services because Respondent is using a mark confusingly similar to the Complainant's to sell competing goods.”).

Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent operates a commercial website located at the disputed domain name.  Commercial websites, by definition, are designed to attract Internet users for commercial profit.  In the instant case, Respondent has appropriated a confusingly similar variation of Complainant’s DOLLAR RENT A CAR within the disputed domain name.  Respondent proceeded to use the confusingly similar domain name to host a website that displayed Complainant’s logo, advertised services of Complainant offered under its DOLLAR RENT A CAR mark, and advertised services of competitors of Complainant’s business.  It is apparent that Respondent created a likelihood of confusion with Complainant’s mark through its registration and use of the disputed domain name.  The foregoing establishes that Respondent intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s mark pursuant to Policy ¶ 4(b)(iv).  See Access Resource Servs., Inc. v. Molle, FA 97750 (Nat. Arb. Forum Aug. 1, 2001) (“Respondent's registration and use of the <misscleosucks.com > domain name to promote competing psychic services, assumedly for commercial gain, by creating a likelihood of confusion with Complainant’s mark is evidence of bad faith pursuant to Policy 4(b)(iv).”); see also Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed.  Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).

Complainant has satisfied Policy ¶ 4(b)(iv), which is evidence of bad faith registration and use of the disputed domain name.

Policy ¶ 4(a)(iii) is established.

DECISION

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

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

James A. Crary, Panelist

Dated:  June 11, 2004

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