DECISION

 

Thrifty, Inc. and Thrifty Car Sales, Inc. v. FrugalAutoSales.com, Inc.

Claim Number: FA0308000190516

 

PARTIES

Complainants are Thrifty, Inc. and Thrifty Car Sales, Inc., Tulsa, OK (“Complainant”) represented by Nicole M. Meyer, of Dickinson Wright, PLLC.  Respondent is FrugalAutoSales.com, Inc., Tucker, GA (“Respondent”) represented by Eric W. Eberhardt.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <thriftyautosales.com>, registered with Network Solutions, Inc.

 

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.

 

Rodney C. Kyle as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on 25 August 2003; the Forum received a hard copy of the Complaint on 25 August 2003.

 

On 28 August 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <thriftyautosales.com> is registered with Network Solutions, Inc. and that the 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 29 August 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of 18 September 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@thriftyautosales.com by e-mail.

 

A timely Response was received and determined to be complete on 18 September 2003.

 

A timely Additional Submission was received from Complainant and was determined to be complete on 23 September 2003.

 

A timely Additional Submission was received from the Respondent and was determined to be complete on 26 September 2003.

 

On 29 September 2003, pursuant to the Complaint request to have the dispute decided by a single-member Panel, the Forum appointed Rodney C. Kyle as Panelist.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant “Thrifty, Inc.”.

 

PARTIES’ CONTENTIONS

A. Complainant

Basically, in the Complaint, Complainant makes three main sets of contentions, including to submit evidence contended to support aspects of them.

 

FIRST MAIN SET

In the first main set of contentions, Complainant basically makes contentions by way of four points.

 

The first point is that Complainant “Thrifty, Inc.”, has at least two wholly owned subsidiaries, being “Thrifty Rent-A-Car System, Inc.” and Complainant “Thrifty Car Sales, Inc.” and that through those two subsidiaries, respectively, cars and other vehicles are rented throughout North America and elsewhere, and automobiles are sold throughout the United States.

 

The second point is that the domain name at issue is registered to Respondent, beginning from 16 February 2002, as evidenced by a copy of a WHOIS database search conducted on 7 June 2003 and attached to the Complaint as Annex 1, such that the Policy is applicable to the domain name at issue, and that the domain name registration agreement and corresponding dispute resolution policy that are applicable to this case are respectively evidenced by Complaint Annexes 2 and 3.

 

The third point has two sub-points. The first sub-point is that there are at least two marks in which Complainant trademark rights subsist (i.e. United States Registration No. 2,240,661 for the mark THRIFTY, issued on 20 April 1999 for used automobile dealership services in Class 35, and United States Registration No. 2,477,739 for the mark THRIFTY, issued on 14 August 2001 for used automobile dealership services in Class 35), by Complainant “Thrifty, Inc.” being the owner thereof and by Complainant “Thrifty Car Sales, Inc.” being that owner’s licensee thereof— all as evidenced by Complaint Annex 4 (which is a copy of each of two trademark registration records downloaded from the United States Trademark Office) and by Complaint Annex 5 (which is a copy of the United States Trademark Office Notice of Recordation of Assignment, reflecting the recordation of assignment of what later became the 2,240,661 registration, and a copy of a license agreement licensing each of those marks to Complainant “Thrifty Car Sales, Inc.”). The second sub-point is that section 7(b) of the United States trademarks statute makes those registrations prima facie evidence of Complainant’s ownership of the marks and of Complainant’s exclusive right to use the registered marks in commerce regulated by United States law.

 

The fourth point is that confusing similarity includes instances of a respondent’s domain name combining a complainant’s mark with a generic expression having a relationship to the complainant’s business, and that in this case the domain name at issue is confusingly similar to each of said trademarks because the domain name at issue combines the THRIFTY mark with the expression “auto sales,” a generic expression which (in view of the first and third points of this list) has a relationship to the business of Complainant.

 

SECOND MAIN SET

In the second main set of contentions, Complainant basically contends by way of two points that Respondent has no “rights or legitimate interests” in respect of the domain name at issue.

 

The first point is that Respondent is making neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name at issue, since the domain name at issue was registered based on its similarity to the Complainant’s THRIFTY marks and is being used to attract customers to the web site at that address and since there is no license or other permission originating from Complainant for Respondent to use any of Complainant’s marks or to apply for any domain name incorporating any of Complainant’s marks. (In so contending, Complainant apparently relies on the copy of web site content in Complaint Annex 6, which content Complainant contends resolves through the domain name at issue and appears to offer competing services.)

 

The second point is that, prior to registering the domain name at issue, Respondent had actual notice, or (via the above-mentioned United States trademark registrations) constructive notice, of Complainant’s THRIFTY marks, and Respondent has neither trademark registrations for the mark THRIFTY AUTO SALES, nor any other rights in that mark and there is nothing in the WHOIS record that would indicate that Respondent is commonly known as THRIFTY AUTO SALES. (In so contending, Complainant apparently relies on Complaint Annexes 1, 4, and 5.)  

 

THIRD MAIN SET

            In the third main set of contentions, Complainant basically contends by way of three

            points that Respondent’s registration and use of the domain name at issue is in bad faith.

 

            The first point is that Respondent uses the domain name (as evidenced, Complainant

            contends, by the above-mentioned Complaint Annex 6) and that by such use Respondent

            has attempted to lure unsuspecting Internet users to Respondent’s web site and siphon off

            consumers from Complainant’s web sites.

 

The second point has three sub-points. The first sub-point is that there are circumstances indicating that Respondent’s purpose in registering and using the domain name at issue was to sell the domain name at issue to Complainant for valuable consideration far in excess of any possible out-of-pocket costs related to the domain name at issue, and that such purpose is indicated by an attempted sale evidenced by Complaint Annexes 11 and 12. The second sub-point is that Annex 11 is a copy of an eBay web site printout of 15 July 2003 offering the domain name at issue at a starting price of $25,000 and showing that there were only approximately eight and a half hours left in the ten day eBay auction listing and that no bids had been received. The third sub-point is that Annex 12 is an affidavit from Complainant’s counsel to the effect that the only way by which the auction listing was discovered by Complainant’s counsel was as a result of a voicemail message left for Complainant’s counsel, and which, by the terms of that message, was purportedly from an interested purchaser who had seen the auction listing, but which could only have been from a person who obtained Complainant’s counsel’s contact information (such as name and telephone number) by being affiliated with Respondent in the sense of being privy to a cease and desist letter that Complainant’s counsel had delivered, by fax and by e-mail, to Respondent.

 

The third point has four sub-points. Overall, it is to the effect that acts or omissions such as Complainant’s counsel’s attempts to deliver that cease and desist letter, and Respondent’s non-response to that letter, show that Respondent provided false contact

information in the WHOIS (both as to e-mail and municipal address as well as to registrant name) and on Respondent’s web site (as to municipal address) and is not conducting a legitimate business. The first sub-point is that on 15 April 2003 Complainant’s counsel used Respondent’s WHOIS addresses to send e-mail, and U.S. certified mail, to Respondent regarding the use of the domain name at issue and Respondent’s use of THRIFTY at the web site which resolved through the domain name at issue, but that the e-mail notification was returned as undeliverable and the certified letter was returned as “not deliverable as addressed”— all as evidenced by the copies of that correspondence and of the return messages that are Complaint Annex 7. The second sub-point is that in a further attempt to contact Respondent, Complainant’s counsel went to the web site that resolved through the domain name at issue and there obtained different contact information about Respondent and proceeded to send an identical letter by certified mail to the municipal address listed on the web site, as well as to the e-mail address listed on that web site and to the fax listed on that web site, and that, although the certified letter was returned “unclaimed,” apparently the e-mail and fax were received— all as evidenced by the copy of the e-mail, facsimile cover sheet, and returned envelope that are Complaint Annex 8. The third sub-point is that the web site content depicted by the copies in Complaint Annex 6 does not include the municipal address referred to in the second sub-point of this paragraph, since that municipal address was removed from that web site between when Complainant’s counsel sent the cease and desist letter and when Complainant’s counsel made those copies of that web site content, but, as evidenced by a copy of a search on Google.com for “thriftyautosales.com” and which is Complaint Annex 9, that municipal address was previously listed on that web site. The fourth sub-point is that, on behalf of Complainant, a local attorney in Atlanta was requested to check out Respondent’s municipal addresses provided in the WHOIS information and on Respondent’s web site and, as evidenced by the copy of the investigation report provided via e-mail and that is Complaint Annex 10, that attorney reported that there is no business called "Thrifty Auto Sales" being conducted at either of those municipal addresses.

 

B. Respondent

Basically, in the Response, Respondent makes three main sets of contentions, but those contentions do not include any evidence.

 

First, apparently in response to the first main set of Complainant’s contentions, Respondent makes contentions by way of three points. The first point is that Respondent’s initial registration of the domain name at issue was in July 2001 rather than on the Complainant-contended date of 16 February 2002, and Respondent contends in turn that the Policy is not applicable to such an earlier registration. The second point is that the word “Thrifty” is a generic word being used by many automotive-related businesses including at least two “Thrifty Auto Sales” doing business in the state of Georgia, in addition to Respondent’s use of it in business generally and in the domain name at issue particularly. The third point is that Respondent neither offers, nor plans to offer, rental services.

 

Second, apparently in response to the second main set of Complainant’s contentions, Respondent makes contentions by way of three points. The points are that whereas Complainant does not appear to be licensed to sell cars in Georgia, Respondent has a right or legitimate interest in respect of the domain name at issue by one or more of (i) its president having been in or related to the used car business for about 20 years; (ii) being licensed, by the Sate of Georgia, to operate a used car business in the state of Georgia as “FrugalAutoSales.com d/b/a ThriftyAutoSales.com”; and (iii) being paid up through 2005 for the domain name at issue.

 

Third, apparently in response to the third main set of Complainant’s contentions, Respondent basically contends that the Forum has reached Respondent by e-mail, and by regular mail, without having any problems.

 

C. Additional Submissions

Neither Party’s Additional Submission appears to permissibly provide anything pertinent

that, in view of the Complaint and the Response, was not already apparent to the Panel as

being at issue in this proceeding or as being the responsibility of the Panel.

 

FINDINGS

The Panel finds

(i)                  the domain name at issue is registered to Respondent, there are the above-mentioned United States trademark registrations in which Complainant has rights, and the domain name at issue is confusingly similar thereto;

(ii)                Respondent has no rights or legitimate interests in respect of the domain name at issue; and

(iii)       the domain name at issue has been registered and is being used in bad faith.

 

DISCUSSION

INTRODUCTION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

 

Paragraph 4(a) of the Policy provides that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(i)                  the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii)                Respondent has no rights or legitimate interests in respect of the domain name; and

(iii)              the domain name has been registered and is being used in bad faith.

 

In view especially of Rule 15(a), the Panel notes four rules and principles of law that it especially deems applicable to ascertaining whether each of those three elements has been proven. First, that

Both [dispositive] and evidential facts must, under the law, be ascertained in some one or more of four possible modes: 1. By judicial admission (what is not disputed); 2. By judicial notice, or knowledge (what is known or easily knowable); 3. By judicial perception (what is ascertained directly through the senses; cf. “real evidence”); 4. By judicial inference (what is ascertained by reasoning from facts already ascertained by one or more of the four methods here outlined).[1]

Second, especially as to mode “3”, that Rule 10(d) provides that “The Panel shall determine the admissibility, relevance, materiality and weight of the evidence.” Third, as to construing and applying Rule 10(d), especially as to whether mode “1” rather than mode “3” applies: a complainant's pleading of fact that is not disputed (or, phrased differently, not “put in issue”) by a respondent against whom it is contended, is an admission by that respondent,[2] so evidence tendered as being rationally probative of (i.e. as being “relevant to”) establishing that fact becomes immaterial, and hence inadmissible, as to establishing that fact.[3] Fourth, as to whether mode “2” rather than either of mode “1” or mode “3” applies, a canvassing of law and commentary shows that 

It was not desirable, nor indeed possible, to foreclose the trier’s use of background information but should the matter noticed be in the forefront of the controversy, should the fact be determinative, the law protected the adversary by insisting that the matter be so commonly known, and hence indisputable, that its notice could not prejudice the opponent.[4]

and that “The party who has the burden of proof on the issue may have to call on the trier to judicially notice the fact when it comes time to analyze the question.”[5]

 

PROCEDURAL MATTERS

Several administrative panel decisions under the Policy include statements, whether as to evidence or otherwise, that the Parties are expected to “get it right the first time”.[6] In view of all of the above, the Panel prefers to apply that approach to this case, but neither as to procedural aspects nor as to substantive aspects of this case has that preference affected the outcome of this case: Complainant prevails either way.

 

SUBSTANTIVE MATTERS

Identical and/or Confusingly Similar

The third of the four rules and principles of law set out in the next to immediately preceding paragraph hereof is applicable to some of the Parties’ contentions on this topic. Specifically, the Panel finds that Respondent admits the first of Complainant’s  contentions  on this topic (i.e. as to Complainant corporate structure and activities) and the last part of the last of Complainant’s contentions on this topic (i.e. that the expression “auto sales” is a generic expression and has a relationship to the business of Complainant).

 

On the issue raised by Respondent’s contention that Respondent’s initial registration of the domain name at issue occurred in July 2001 rather than on the Complainant-contended date of 16 February 2002, Complainant prevails. Respondent’s contention makes material evidence of Complaint Annex 1, i.e. a copy of a WHOIS database search conducted on 7 June 2003. That evidence is also relevant, admissible, and of substantial weight in proving that registration of the domain name at issue occurred on 16 February 2002, whereas Respondent has not produced evidence of earlier registration of the domain name at issue, as contrasted with some other sort of registration.

 

In any event, on the follow-on Respondent contends that the Policy is not applicable to a July 2001 domain name registration, Complainant prevails. Respondent’s contention makes material evidence of Complaint Annexes 2 and 3, i.e. the domain name registration agreement and corresponding dispute resolution policy. That evidence is also relevant, admissible, and of substantial weight in proving that the Policy, which Complaint Annex 3 shows was “[a]pproved by ICANN: October 24, 1999,” is applicable to a July 2001 domain name registration, whereas Respondent has not produced evidence to the contrary.

 

On Respondent’s contention that the word “Thrifty” is a generic word being used by many automotive-related businesses, Complainant prevails. There are five steps to reaching that conclusion. First, Respondent’s contention makes material evidence of Complaint Annexes 4  (i.e. a copy of each of two trademark registration records downloaded from the United States Trademark Office) and 5 (i.e. a copy of the United States Trademark Office Notice of Recordation of Assignment, reflecting the recordation of assignment of what later became the 2,240,661 registration, and a copy of a license agreement licensing each of those marks to Complainant “Thrifty Car Sales, Inc.”). Second, as contended by Complainant, section 7(b) of the United States trademarks statute makes those registrations prima facie evidence of Complainant ownership of the marks and of Complainant exclusive right to use the registered marks in commerce regulated by United States law. Third, the Complaint Annex 5 evidence is also relevant, admissible, and of substantial weight in proving likewise. Fourth, Respondent has not produced evidence to the contrary of either or both of Complaint Annexes 4 and 5. Fifth, on balance, the evidence in Complaint Annexes 4 and 5 is persuasive.

 

Respondent’s contention that Respondent neither offers, nor plans to offer, rental services is irrelevant, not the least of which because it misses the point that Complainant’s trademark registrations are as to used automobile dealership services, rather than as to rental services.

 

Also, Respondent has not taken issue with Complainant’s contention that in principle under Policy ¶ 4(a)(i) there is confusing similarity if a respondent’s domain name combines a complainant’s mark with a generic expression that has a relationship to the complainant’s business. To that principle the Panel adds the principle from Sweeps Vacuum & Repair Center, Inc. v. Nett Corp., D2001-0031 (WIPO April 13, 2001), that  “graphic elements … not being reproducible in a domain name, need not be considered when assessing identity or confusing similarity.” As a result, in this case, the domain name at issue is confusingly similar to each of said trademarks because the domain name at issue combines the THRIFTY mark with the expression “auto sales,” a generic expression which has a relationship to the business of Complainant.

 

In view especially of the six immediately preceding paragraphs hereof, Policy ¶ 4(a)(i) is proven as to the domain name at issue.

 

Rights or Legitimate Interests

The context in which this part of this discussion occurs includes (i) Policy paragraph 4(c); and (ii) administrative panel decisions as to burden of production.

 

Policy Paragraph 4(c)

Policy ¶ 4(c) is basically directed from a domain name registrar to a domain name registrant and prospective mandatory administrative proceeding respondent, and includes that

When you receive a complaint, you should refer to [Rule 5] in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of [Policy paragraph] 4(a)(ii):

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

(See endnote 2 hereof for some provisions of Rule 5.)

 

The second main set of Complainant’s contentions amount to pleadings of Policy ¶ 4(a)(ii) and of negatives of the enumerated parts of Policy ¶ 4(c). In view thereof, Complainant has made a prima facie showing that the domain name at issue is within Policy ¶ 4(a)(ii).

 

Administrative Panel Decisions As To Burden Of Production

Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) includes that when, as in this case, “the complainant has made a prima facie showing, the burden of production shifts to the respondent to show by providing concrete evidence that it has rights to or legitimate interests in the domain name at issue” (emphasis in original). (To similar effect see e.g. Gene Logic Inc. v. Bock, FA 103042 (Nat. Arb. Forum Mar. 4, 2002) and Twentieth Century Fox Film Corp. v. Benstein, FA 102962 (Nat. Arb. Forum Feb. 27, 2002).)

 

As explained in the following five paragraphs, Respondent has not met that burden.

 

Respondent’s contention that Complainant does not appear to be licensed to sell cars in Georgia, is irrelevant to Respondent having a right or legitimate interest in respect of the domain name at issue.

 

Respondent’s contention of its president having been in or related to the used car business for about 20 years is not a contention about Respondent per se, and to that extent it is irrelevant; in any event, the contention is not supported by any evidence produced by either Party.

 

Respondent’s contention of being licensed, by the Sate of Georgia, to operate a used car business in the state of Georgia as “FrugalAutoSales.com d/b/a ThriftyAutoSales.com” is not supported by any evidence produced by either Party in accordance with the Policy and the Rules.

 

Even if Respondent had produced evidence, in accordance with the Policy and the Rules,  that either or both of a State of Georgia “Used Motor Vehicle Dealer License” or State of Georgia, Department of Revenue, Sales and Use Tax Division, “Certificate of Registration” had been issued to a relevant person, that evidence would not have availed Respondent. That is so, basically because of the Used Motor Vehicle Dealers’ and Used Motor Vehicle Parts Dealers’ Registration Act (i.e. Georgia Code 43-47), and the Georgia Public Revenue Code  (i.e. Georgia Code 48-2-12) and regulations made under the Georgia Public Revenue Code as to “Automotive and Other Vehicle Dealers” (i.e. Regulation 560-12-2-.09): neither individually nor collectively do they result in a person who respectively has such a license, or such a certificate, thereby necessarily having “rights or legitimate interests in respect of the domain name” within the meaning of that expression as it occurs in Policy ¶ 4(a)(ii).

 

Moreover, even if Respondent could be said to have adopted one or more aspects of Complainant’s evidence (i.e. from the WHOIS record contained in Complaint Annex 1) and to have contended them to be in support of the preamble of Policy ¶ 4(c) (i.e. Respondent's contention that the domain name at issue is Respondent’s, paid up through 2005), Respondent’s contention would be wrong. If a respondent’s domain name registration that is the very subject-matter of a mandatory administrative proceeding under the Policy could, per se, confer or evidence “rights or legitimate interests” within the meaning of that expression as it appears in Policy ¶ 4(a)(ii) then the Policy would basically be rendered a nullity. As a result, it has long been well and clearly established by mandatory administrative proceeding decisions under the Policy that such registrations do not do so. See e.g. the following decisions, and decisions in which they are cited: N.C.P. Mktg. Group, Inc. v. Entredomains, D2000-0387 (WIPO July 5, 2000) and Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, D2000-1244 (WIPO Nov. 11, 2000).

 

Summary

In view especially of the ten immediately preceding paragraphs hereof, Policy ¶ 4(a)(ii) is proven as to the domain name at issue.

 

Registration and Use in Bad Faith

The context in which this part of this discussion occurs includes Policy paragraph 4(b).

 

Policy ¶ 4(b) is basically directed from a domain name registrar to a domain name registrant and prospective mandatory administrative proceeding respondent, and includes that

For the purposes of [Policy paragraph] 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

 

As for each of Policy paragraphs 4(b)(i), 4(b)(ii), and 4(b)(iii), they basically define respective types of bad-faith registration and provide that if any one of such types of registration has been ascertained by a panel then bad-faith use is in turn evidenced via application of the respective one of those three provisions. In this proceeding, although Policy ¶¶ 4(b)(ii) and 4(b)(iii) do not appear to be contended by Complainant, Policy ¶ 4(b)(i) is contended by Complainant (i.e. by the second point of the Complaint’s third main set of contentions), and Respondent has not taken issue with that contention. The Panel finds those Policy ¶ 4(b)(i) contentions are admitted by Respondent and are therefore proven. Moreover, in the event the Panel has erred in finding those admissions, the Panel has reviewed the evidence (i.e. Complaint Annexes 11 and 12) and finds it relevant, admissible, and of such substantial weight as to basically prove the Policy ¶ 4(b)(i) contentions Complainant contends it proves.

 

As for Policy ¶ 4(b)(iv), it basically defines a type of bad-faith use and provides that if such type of use is ascertained by a panel then bad-faith registration is in turn evidenced via application of that provision. In this proceeding, Policy ¶ 4(b)(iv) is contended for by Complainant (i.e. by the first point of the Complaint’s third main set of contentions), and Respondent has not taken issue with that contention. The Panel finds those Policy ¶ 4(b)(iv) contentions are admitted by Respondent and are therefore proven. Moreover, in the event the Panel has erred in finding those admissions, the Panel has reviewed the evidence (i.e. Complaint Annex 6) and finds it relevant, admissible, and of such substantial weight as to basically prove the Policy ¶ 4(b)(iv) contentions Complainant contends it proves.

 

As well, Respondent’s registration and use of the domain is contended by Complainant (i.e. by the third point of the Complaint’s third main set of contentions) to be in bad faith within the preamble of Policy ¶ 4(b), and Respondent has not taken issue with that contention. The Panel finds those Policy ¶ 4(b) preamble contentions are admitted by Respondent and are therefore proven. Moreover, in the event the Panel has erred in  finding those admissions, the Panel has reviewed the evidence (i.e. Complaint Annexes 7, 8, 9, and 10) and finds it relevant, admissible, and of such substantial weight as to basically prove the Policy ¶ 4(b) preamble contentions Complainant contends it proves.

 

In view especially of the five immediately preceding paragraphs hereof, Policy ¶ 4(a)(iii) is proven as to the domain name at issue.

 

DECISION

Complainant having established all three elements required by Policy ¶ 4(a), the Panel concludes that the relief requested by Complainant shall be GRANTED.

 

Accordingly, it is Ordered that the <thriftyautosales.com> domain name be TRANSFERRED from Respondent to Complainant, “Thrifty, Inc.”.

 

Rodney C. Kyle, Panelist
             Dated: 13 October 2003

 

 

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