Dollar Rent A Car, Inc. v. Rob Smith
d/b/a Ameriasa
Claim
Number: FA0404000257706
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.
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.
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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
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.
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.
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
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).
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).
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.
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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