Budget Rent A Car System, Inc. v.
gobudget
Claim
Number: FA0501000407013
Complainant is Budget Rent A Car System, Inc. (“Complainant”),
represented by Kathryn S. Geib, 1 Sylvan Way, Parsippany, NJ 07054. Respondent is gobudget (“Respondent”),
Web Master, General Delivery, Georgetown Grand Cayman GT, KY.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <gobudget.com>, registered with Address
Creation.
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.
Tyrus
R. Atkinson, Jr., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on January
21, 2005; the National Arbitration Forum received a hard copy of the Complaint
on January 24, 2005.
On
January 25, 2005, Address Creation confirmed by e-mail to the National
Arbitration Forum that the domain name <gobudget.com> is
registered with Address Creation and that Respondent is the current registrant
of the name. Address Creation has verified that Respondent is bound by the Address
Creation 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
January 26, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of February 15, 2005 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@gobudget.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 National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
February 22, 2005, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the National Arbitration Forum appointed
Tyrus R. Atkinson, Jr., 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." 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <gobudget.com>
domain name is confusingly similar to Complainant’s BUDGET mark.
2. Respondent does not have any rights or
legitimate interests in the <gobudget.com> domain name.
3. Respondent registered and used the <gobudget.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant is a
franchisor of a system of businesses for the promotion and assistance of
independently owned and operated vehicle rental offices to compete more
effectively in the vehicle rental market.
Complainant registered the BUDGET mark with the United States Patent and
Trademark Office (“USPTO”) on June 2, 1981 in connection with “retail auto
agency services” (Reg. No. 1,156,786).
Respondent
registered the disputed domain name, <gobudget.com>, on September
26, 2000. The domain name has resolved
to a webpage located at <travelnow.com>, which has featured vehicle
rental service reservations provided by companies such as Budget, Alamo and
Thrifty.
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 a presumption of rights in the BUDGET mark, pursuant to
paragraph 4(a)(i) of the Policy, as the result of its registration of the mark
with the USPTO. See Janus Int’l Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which
creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this
assumption); 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).
The disputed
domain name, <gobudget.com>, incorporates Complainant’s
BUDGET mark and has merely added the word “go.” Prior decisions under the UDRP have held that the incorporation
of a third-party mark, in combination with the word “go,” fails to alleviate
the confusing similarity that arises by inserting a third-party’s mark. Therefore, consistent with prior decisions,
the Panel finds that the disputed domain name is confusingly similar to
Complainant’s mark pursuant to paragraph 4(a)(i) of the Policy. See Certified Fin. Planner Bd. of
Standards, Inc. v. Career Prof’ls, Inc., FA 97354 (Nat. Arb. Forum July 12,
2001) (finding that the <gocfp.com> domain name was confusingly similar
to the complainant’s CFP mark because the addition of the term “go” is “likely
to be viewed by Internet users as little more than an indicator that the domain
name links to a web site related to CFP”); see also K&N Eng’g, Inc. v.
Weinberger, FA 114414 (Nat. Arb. Forum July 25, 2002) (finding the domain
name, <goknfilters.com>, confusingly similar to the complainant’s
KNFILTERS mark).
Complainant has
established Policy ¶ 4(a)(i).
The fact that
Respondent has failed to respond to the Complaint allows the Panel to accept
all reasonable allegations set forth in the Complaint as true. See Am. Online, Inc. v. Clowers, FA
199821 (Nat. Arb. Forum Nov. 14, 2003) (finding that the failure to challenge a
complainant’s allegations allows a panel to accept all of the complainant’s
reasonable allegations and inferences as true); see also Wells Fargo & Co. v. Shing, FA
205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that the failure to respond to a
complaint allows a panel to make reasonable inferences in favor of a
complainant and accept the complainant’s allegations as true).
Moreover,
Respondent’s failure to respond may be construed as an implicit admission that
it lacks rights and legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as
an admission that they have no legitimate interest in the domain names); see also Honeywell Int’l Inc. v. Domain Deluxe, FA 269166 (Nat. Arb. Forum June 29,
2004) (“The failure of Respondent to respond to the Complaint functions both as
an implicit admission that Respondent lacks rights to and legitimate interests
in the domain names, as well as a presumption that Complainant’s reasonable
allegations are true.”).
Respondent has
used a domain name, which is confusingly similar to Complainant’s BUDGET mark,
to divert Internet users to a website featuring services provided by Alamo and
Thrifty—direct competitors of Complainant.
Therefore, Respondent is not using the disputed domain name in
connection with a bona fide offering of goods or services pursuant to
paragraph 4(c)(i) of the Policy. See
Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23,
2003) (holding that Respondent’s appropriation of Complainant’s mark to market
products that compete with Complainant’s goods does not constitute a bona fide
offering of goods and services); see also Clear Channel Communications, Inc.
v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that
Respondent, as a competitor of Complainant, had no rights or legitimate
interests in a domain name that utilized Complainant’s mark for its competing
website).
Complainant has
asserted that Respondent is not commonly known by the disputed domain name
pursuant to paragraph 4(c)(ii) of the Policy.
Since Respondent has offered no evidence to rebut this assertion, the
Panel accepts it as true. See Am.
Online, Inc. v. Clowers, FA 199821 and Wells Fargo & Co. v.
Shing, FA 205699.
Since Respondent
is using the disputed domain name in a commercial manner, paragraph 4(c)(iii)
of the Policy is inapplicable. See Schering Corp. v. NGS Enters., LTD,
FA 198013 (Nat. Arb.
Forum Nov. 7, 2003) (“[T]he Panel
concludes that Respondent's use is plainly commercial in nature, such that
Policy ¶ 4(c)(iii) is in fact inapplicable to this dispute.”); see also Avery Dennison Corp. v. Steele, FA 133626 (Nat. Arb. Forum Jan. 10,
2003) (“Evidence indicates that Respondent is profiting
from the use of Complainant's mark, therefore Policy ¶ 4(c)(iii)’s
'noncommercial or fair use' criteria are inapplicable.”); see also Prudential Ins. Co. of Am. v. Prudential
Mortgage Loans, FA
103880 (Nat. Arb. Forum Mar. 20, 2002) (“No contention
is made that Respondent's site is noncommercial. Paragraph 4(c)(iii) is inapplicable to this case.”); see also Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7,
2002) (finding Policy ¶ 4(c)(iii)
inapplicable because of the commercial
nature of Respondent’s use of the disputed domain name).
Complainant has
established Policy ¶ 4(a)(ii).
By using the
disputed domain name to divert Internet users to business competitors of
Complainant, Respondent has demonstrated that it has intentionally attempted to
attract Internet users to the resolved website for commercial gain by creating
a likelihood of confusion with Complainant’s mark, in violation of paragraph
4(b)(iv) of the Policy. See Am. Online, Inc. v. Fu, D2000-1374 (WIPO
Dec. 11, 2000) (finding that Respondent intentionally attempted to attract
Internet users to his website for commercial gain by creating a likelihood of
confusion with Complainant’s mark and offering the same services as Complainant
via his website); see also Scholastic
Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001)
(finding bad faith under Policy ¶ 4(b)(iv) where Respondent initially used the
domain name at issue to resolve to a website offering similar services as
Complainant into the same market); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14,
2001) (finding bad faith where Respondent used the domain name, for commercial
gain, to intentionally attract users to a direct competitor of Complainant).
Complainant has
established Policy ¶ 4(a)(iii).
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <gobudget.com> domain name be TRANSFERRED
from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated:
March 4, 2005
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