Land Rover v. Michael Kooyman a/k/a Impowered
Claim Number: FA1108001403899
Complainant is Land Rover (“Complainant”), represented by Anessa Owen Kramer of Honigman Miller Schwartz & Cohn LLP, Michigan, USA. Respondent is Michael Kooyman a/k/a Impowered (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <landrovercustomercare.com> and <landrovercustomerservice.com>, registered with TUCOWS, INC.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 18, 2011; the National Arbitration Forum received payment on August 19, 2011.
On August 19, 2011, TUCOWS, INC. confirmed by e-mail to the National Arbitration Forum that the <landrovercustomercare.com> and <landrovercustomerservice.com> domain names are registered with TUCOWS, INC. and that Respondent is the current registrant of the names. TUCOWS, INC. has verified that Respondent is bound by the TUCOWS, INC. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 23, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 12, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@landrovercustomercare.com and postmaster@landrovercustomerservice.com. Also on August 23, 2011, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 15, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <landrovercustomercare.com> and <landrovercustomerservice.com> domain names are confusingly similar to Complainant’s LAND ROVER mark.
2. Respondent does not have any rights or legitimate interests in the <landrovercustomercare.com> and <landrovercustomerservice.com> domain names.
3. Respondent registered and used the <landrovercustomercare.com> and <landrovercustomerservice.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Land Rover, has operated in the sport utility vehicle industry since 1948. Complainant holds multiple trademark registrations for the LAND ROVER mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,138,108 registered July 22, 1980).
Respondent, Michael Kooyman a/k/a Impowered, registered the <landrovercustomercare.com> and <landrovercustomerservice.com> domain names on July 1, 2009 and October 15, 2010, respectively. The disputed domain names resolve to pages featuring links to several third-party websites and advertisements relating both to Complainant’s products and those of its competitors.
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”).
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.
Complainant claims rights in the LAND ROVER mark under Policy ¶ 4(a)(i). Past panels have determined that registration of a mark with a federal trademark authority is sufficient to confer rights in a mark. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations). Complainant has provided evidence of its registrations of the LAND ROVER mark with the USPTO (e.g., Reg. No. 1,138,108 registered July 22, 1980). The Panel concludes that this is sufficient to confer rights in the mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Complainant also asserts that the disputed domain names are confusingly similar to Complainant’s LAND ROVER mark under Policy ¶ 4(a)(i). Each domain name wholly contains Complainant’s mark, adding the generic terms “customer care” and “customer service.” The Panel holds that these generic terms cannot serve to distinguish the disputed domain names, as both “customer care” and “customer service” are important aspects of Complainant’s business. See Space Imaging LLC v. Brownell, 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). Coupling Complainant’s mark with these terms falsely implies some affiliation with Complainant, rendering the disputed domain names confusingly similar under Policy ¶ 4(a)(i). See Brambles Indus. Ltd. v. Geelong Car Co. Pty. Ltd., D2000-1153 (WIPO Oct. 17, 2000) (finding that the domain name <bramblesequipment.com> is confusingly similar because the combination of the two words "brambles" and "equipment" in the domain name implies that there is an association with the complainant’s business). Additionally, the addition of the generic top-level domain (“gTLD”) “.com” and the removal of the space separating the terms of Complainant’s mark does not distinguish the disputed domain name. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
It is now well-established that Complainant shoulders the initial burden of presenting a prima facie case. Once this burden has been satisfied, as is the case here, the burden then shifts to Respondent to refute Complainant’s claims. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). Some Panels have concluded that a Respondent’s failure to submit a Response is per se evidence that Respondent lacks rights and legitimate interests in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). In the interest of fairness, however, the Panel will continue to examine the record to determine whether such rights or legitimate interests do exist under Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by the <landrovercustomercare.com> and <landrovercustomerservice.com> domain names for the purposes of Policy ¶ 4(c)(ii). The relevant WHOIS information identifies the domain name registrant as “Michael Kooyman a/k/a Impowered,” which the Panel finds to bear no resemblance to either disputed domain name. This provides evidence that Respondent is not commonly known by the disputed domain names. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply). Complainant also indicates that it did not authorize Respondent to register either confusingly similar domain name. Without a Response, and absent any contrary evidence in the record, the Panel must hold that Complainant is not commonly known by the disputed domain names for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant further alleges that Respondent’s use of the disputed domain names does not coincide with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). The disputed domain names resolve to pages featuring links to several third-party websites and advertisements relating both to Complainant’s products and those of its competitors. Past panels have agreed that this type of use constitutes neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (concluding that the use of a confusingly similar domain name to operate a portal with hyperlinks to various third-party websites, some of which may be in direct competition with a complainant, does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). The Panel concludes that Respondent’s use of the disputed domain names does not coincide with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant urges that Respondent’s inclusion of links to Complainant’s competitors on its website constitutes bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii). Respondent’s operation of a confusingly similar domain name will likely lead some Internet users to visit Respondent’s website, when in fact they had intended to visit Complainant’s. Invariably, a portion of these misdirected users will access the competing links displayed on Respondent’s site. The Panel holds that this type of misdirection constitutes registration and use in bad faith under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Finally, Complainant believes that Respondent’s registration and use of the <landrovercustomercare.com> and <landrovercustomerservice.com> domain names constitutes bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). Through the use of a confusingly similar domain name, Respondent creates a likelihood of confusion with Complainant and its products in an attempt to deceive consumers into mistakenly believe that Respondent is affiliated with Complainant’s business in some way. The Panel assumes that Respondent collects click-through fees each time one of its links is accessed, thus making the operation of the sites at the disputed domain names commercially viable. In this way, Respondent seeks to realize a commercial gain through the confusion it creates. The Panel holds that this type of business model constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <landrovercustomercare.com> and <landrovercustomerservice.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: September 16, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page