Frontier-Oldsmobile-Cadillac, Inc. d/b/a
Freedom Chevrolet v. David Smith
Claim
Number: FA0305000156845
Complainant is Frontier-Oldsmobile-Cadillac, Inc. d/b/a
Freedom Chevrolet, Monroe, NC (“Complainant”) represented by Jami M. Jackson, of Parker, Poe, Adams
& Bernstein LLP. Respondent is David Smith, Waxhaw, NC
(“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <freedomchevrolet.com>, registered with Network
Solutions, 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.
The
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on May 8, 2003; the Forum received a hard copy of the Complaint
on May 12, 2003.
On
May 13, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the
domain name <freedomchevrolet.com> is registered with Network
Solutions, Inc. and that Respondent is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
Inc. 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 14, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 3, 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@freedomchevrolet.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
July 2, 2003, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the Forum appointed the Honorable Charles K. McCotter,
Jr. (Ret.) 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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <freedomchevrolet.com>
domain name is identical to Complainant’s FREEDOM CHEVROLET mark.
2. Respondent does not have any rights or
legitimate interests in the <freedomchevrolet.com> domain name.
3. Respondent registered and used the <freedomchevrolet.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Frontier-Oldsmobile-Cadillac, Inc, has operated a motor vehicle dealership
under the name Freedom Chevrolet in Monroe, North Carolina since March of 1999.
Pursuant to its business use, Complainant registered the FREEDOM CHEVROLET mark
on February 10, 2003, in the state of North Carolina (No. T-17287).
Respondent,
David Smith, registered the <freedomchevrolet.com> domain name on
March 11, 2003, and is not licensed or authorized to use Complainant’s FREEDOM
CHEVROLET mark for any purpose. Respondent
is using the disputed domain name to host a complaint website against
Complainant and its business in Monroe, North Carolina. On its website,
Respondent alleges that he repeatedly received poor service from Complainant’s
dealership, and expresses his opinion on the character of those individuals
employed at that particular dealership.
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.
Complainant has
established rights in the FREEDOM CHEVROLET mark through proof of registration
of that mark in the State of North Carolina. See Lee Enters., Inc. v.
Polanski, FA 135619 (Nat. Arb. Forum Jan. 22, 2003) (finding evidence that
Complainant had established rights in the BILLINGS GAZETTE mark through
registration with the Montana and Wyoming state trademark officials); see
also Quality Custom Cabinetry, Inc. v. Cabinet Wholesalers, Inc., FA 115349
(Nat. Arb. Forum Sept. 7, 2002) (finding that Complainant’s trademark registrations
in Pennsylvania and New Jersey established that Complainant had sufficient
standing to bring a claim under the UDRP).
Respondent’s <freedomchevrolet.com> domain name is
identical to Complainant’s FREEDOM CHEVROLET mark. The elimination of the space
between the two words of Complainant’s mark and the addition of the top-level
domain “.com” are both techincal alterations of Complainant’s mark imposed upon
Respondent due the the nature of the domain name system. These variations do
not prevent the domain name from being considered identical to Complainant’s
mark. See Hannover
Ruckversicherungs-AG v. Ryu,
FA 102724 (Nat. Arb. Forum Jan. 7, 2002) (finding <hannoverre.com> to be
identical to HANNOVER RE, “as spaces are impermissible in domain names and a
generic top-level domain such as ‘.com’ or ‘.net’ is required in domain
names”); see also 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).
Accordingly, the
Panel finds that the <freedomchevrolet.com> domain name is identical to Complainant’s
FREEDOM CHEVROLET mark under Policy ¶ 4(a)(i).
Many Internet consumers assume that they can reach a business’ website
by simply typing in that company’s name or trademark into a web browser
followed by a top-level domain (such as “.com”). Respondent has taken advantage
of this fact by registering a domain name that is identical to Complainant’s
trade name and trademark. In doing so, Respondent is capitalizing on the
goodwill surrounding Complainant’s trademark in order to undermine that very
mark. Using Complainant’s mark for these purposes does not bestow upon
Respondent rights or legitimate interests in a domain name, as it is not a use
protected by the First Amendment. See Sears, Roebuck & Co. v. Hanna Law
Office, D2000-0669 (WIPO
Sept. 8, 2000) (finding a high degree of initial interest confusion, where
consumers would be easily confused, when a Respondent registers a domain name
that is identical to a Complainant’s mark for an otherwise fair use); see
also Baker &Daniels v. DefaultData.com, FA 104579 (Nat. Arb. Forum Mar.
27, 2002) (finding that because Respondent’s <bakeranddaniels.com> domain
name merely incorporates Complainant’s trademark, without more, it is not
protected by the First Amendment); see also People for the Ethical Treatment
of Animals v. Doughney, 113 F.Supp.2d 915, 919 (E.D.Va.2000) ("PETA")
(citing Planned Parenthood Federation of America, Inc. v. Bucci, 42
U.S.P.Q.2d 1430, 1435 (S.D.N.Y.1997)) (" '[Using someone else's identical
mark in a domain name to express views antithetical to those of the mark’s
holder] is likely to prevent Internet users from reaching plaintiff’s own
Internet web site. The prospective
users of plaintiff’s services who mistakenly access Defendant's web site may
fail to continue to search for plaintiff’s own home page, due to anger,
frustration, or the belief that the Plaintiff's home page does not exist.'
").
Accordingly, the
Panel finds that Respondent does not have rights or legitimate interests in the
<freedomchevrolet.com> domain
name under Policy ¶ 4(a)(ii).
Respondent registered a domain name that it knew was identical to
Complainant’s FREEDOM CHEVROLET mark, and then used the domain name to tarnish
Complainant’s mark with a complaint website. As stated above, Complainant has
every right to voice legitimate complaints against Complainant. However, those
complaints cannot be expressed in a website located at a domain name that is
identical to Complainant’s trademark. The
Panel thus finds that Respondent registered and used the <freedomchevrolet.com>
domain name in bad faith, and that
Policy ¶ 4(a)(iii) is satisfied. See
Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14,
2000) (finding bad faith where Respondent knowingly chose a domain name,
identical to Complainant’s mark, to voice its concerns, opinions, and criticism
about the Complainant); see also Mission
KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (finding that the
Respondent registered the domain names <kwasizabantu.com>,
<kwasizabantu.org>, and <kwasizabantu.net> in bad faith where
Respondent published negative comments regarding the Complainant’s organization
on the confusingly similar website).
Having
established all three elements required under ICANN Policy, the Panel concludes
that relief shall be GRANTED.
Accordingly, it
is Ordered that the <freedomchevrolet.com> domain name be TRANSFERRED
from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr.
(Ret.), Panelist
Dated:
July 16, 2003
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