DaimlerChrysler AG v. Bunie.com
Claim
Number: FA0507000519308
Complainant, DaimlerChrysler AG (“Complainant”), is
represented by Jan Zecher of Gleiss Lutz Rechtsanwaelte,
Maybachstr. 6, Reference 71130-05, Stuttgart, 70469, Germany. Respondent is Bunie.com (“Respondent”), 374 East H Street, Suite A, PMB #416,
Chula Vista, CA 91910.
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain names at issue are <chysler.com> and <daimlerchysler.com>,
registered with Bulkregister, Llc.
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.
James
A. Carmody, Esq., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on July
19, 2005; the National Arbitration Forum received a hard copy of the Complaint
on July 25, 2005.
On
July 20, 2005, Bulkregister, Llc. confirmed by e-mail to the National
Arbitration Forum that the <chysler.com> and <daimlerchysler.com>
domain names are registered with Bulkregister, Llc. and that Respondent is the
current registrant of the names. Bulkregister,
Llc. has verified that Respondent is bound by the Bulkregister, Llc. 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
July 27, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of August 16,
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@chysler.com and postmaster@daimlerchysler.com by
e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
August 25, 2005, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration Forum appointed James A.
Carmody, Esq., 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <chysler.com>
and <daimlerchysler.com> domain names are confusingly similar to
Complainant’s CHRYSLER and DAIMLERCHRYSLER marks.
2. Respondent does not have any rights or
legitimate interests in the <chysler.com> and <daimlerchysler.com>
domain names.
3. Respondent registered and used the <chysler.com>
and <daimlerchysler.com> domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
DiamlerChrysler AG, and its subsidiary, DiamlerChrysler Corp., own numerous
registrations for the CHRYSLER mark with the United States Patent and Trademark
Office (“USPTO”) (E.g., Reg. No. 428,619 issued June 10, 1946; Reg. No.
1,513,942 issued March 28, 1988) and with Germany’s Trademark Office (Reg. No.
764,370 issued October 13, 1991).
Complainant also owns several registrations for its DAIMLERCHRYSLER mark
with the USPTO (E.g., Reg. No 2,784,572 issued June 17, 1998; Reg. No.
2,644,906 issued November 6, 1998) and with several other countries.
The CHRYSLER
mark is world-famous and Complainant and its legal predecessors (collectively
“Complainant”) have been using it for automotive vehicles since 1924. The DAIMLERCHRYSLER mark is likewise
world-famous. The DAIMLER part of the
mark has been used for automotive vehicles since 1886. In the last ten years, Complainant sold over
1,000,000 vehicles. Complainant has
spent billions of dollars on advertising and promoting its vehicles under the
CHRYSLER and DAIMLERCHRYSLER marks in a wide range of media, including print,
radio, television, and the Internet.
Respondent
registered the <daimlerchysler.com> domain name on January 31,
2000. Respondent registered the <chysler.com>
domain name on January 25, 2000.
Respondent used both domain names for websites that featured links to
cars and car-related services offered by third-parties.
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’s
registrations for its CHRYSLER and DAIMLERCHRYSLER marks with the USPTO are
sufficient to establish Complainant’s rights in the mark. See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.”); see also Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11,
2003) (“Complainant's federal trademark registrations establish Complainant's
rights in the BLIZZARD mark.”).
Complainant
contends that the <chysler.com> and <daimlerchysler.com>
domain names are confusingly similar to Complainant’s CHRYSLER and
DAIMLERCHRYSLER marks. Respondent’s
<chysler.com> and <daimlerchysler.com> domain names
wholly incorporate Complainant’s CHYSLER and DAIMLERCHRYSLER marks,
respectively, and remove a letter “r” from the marks. The Panel finds that Respondent is merely misspelling
Complainant’s marks and that the removal of one letter is insufficient to
distinguish Respondent’s domain names from Complainant’s marks. See State Farm Mut. Auto. Ins. Co. v. Try
Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that
the domain name <statfarm.com> is confusingly similar to the
complainant’s STATE FARM mark); see also Compaq Info. Techs. Group, L.P. v.
Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain
name <compq.com> is confusingly similar to the complainant’s COMPAQ mark
because the omission of the letter “a” in the domain name does not
significantly change the overall impression of the mark).
Thus, the Panel
finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant
asserts that Respondent does not have rights or legitimate interests in the <chysler.com>
and <daimlerchysler.com> domain names. Complainant’s assertion establishes a prima facie case and
shifts the burden to Respondent. To
meet its burden, Respondent must provide the Panel with evidence that it does
have rights or legitimate interests in the disputed domain name. Compagnie Generale des Matieres
Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001):
Proving that
the Respondent has no rights or legitimate interests in respect of the Domain
Name requires the Complainant to prove a negative. For the purposes of this sub
paragraph, however, it is sufficient for the Complainant to show a prima facie
case and the burden of proof is then shifted on to the shoulders of
Respondent. In those circumstances, the
common approach is for respondents to seek to bring themselves within one of
the examples of paragraph 4(c) or put forward some other reason why they can
fairly be said to have a relevant right or legitimate interests in respect of
the domain name in question.
Id.; see also G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission
constitutes a prima facie case under the Policy, the burden effectively
shifts to Respondent. Respondent’s failure to respond means that Respondent has
not presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).”). The Panel will analyze whether Respondent
could meet its burden of establishing rights or legitimate interests for
purposes of Policy ¶ 4(a)(ii).
Complainant
argues that Respondent is not commonly known by the disputed domain names. Without a response from Respondent, the
Panel accepts as true Complainant’s allegation. See Desotec N.V. v.
Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to
respond allows a presumption that the complainant’s allegations are true unless
clearly contradicted by the evidence).
Moreover, Respondent’s WHOIS information suggests that Respondent is
known as “Bunie.com.” Therefore, the
Panel concludes that Respondent is not commonly known by the disputed domain
names and does not have rights or legitimate interests under Policy ¶
4(c)(ii). 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); see also Gallup, Inc. v.
Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that
the respondent does not have rights in a domain name when the respondent is not
known by the mark).
Complainant
provides evidence that Respondent benefits from the confusing similarity of the
<chysler.com> and <daimlerchysler.com> domain names
by displaying links to cars and car-related services and receiving
pay-per-click fees from confused Internet users who click on these links. Complainant argues that Respondent’s links
directly compete with Complainant.
Because Respondent did not respond, the Panel treats Complainant’s
arguments as true. See Vanguard
Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding
that because Respondent failed to submit a Response, “Complainant’s submission
has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all
reasonable allegations . . . unless clearly contradicted by the
evidence.”). Thus,
the Panel concludes that Respondent is not using the disputed domain name in
connection 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). See DLJ Long Term Inv.
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 Ultimate Elecs., Inc. v.
Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the
respondent's “use of the domain name (and Complainant’s mark) to sell
products in competition with Complainant demonstrates neither a bona fide
offering of goods or services nor a legitimate noncommercial or fair use of the
name”).
Moreover,
because Respondent is purposely misspelling Complainant’s mark, it is engaging
in the practice of typosquatting. The
Panel holds that such typosquatting indicates that Respondent lacks rights and
legitimate interests for purposes of Policy ¶ 4(a)(ii). See IndyMac Bank
F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003)
(finding that the respondent lacked rights and legitimate interests in the
disputed domain names because it “engaged
in the practice of typosquatting by taking advantage of Internet users who
attempt to access Complainant's <indymac.com> website but mistakenly
misspell Complainant's mark by typing the letter ‘x’ instead of the letter
‘c’”); see also LTD Commodities LLC v. Party
Night, Inc., FA 165155 (Nat. Arb.
Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”).
Consequently,
the Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is
using the confusingly similar domain names to operate a website that features
links to car and car-related services, for which it presumably receives
click-through fees. The Panel finds
that Respondent is capitalizing on Internet user confusion and that such use is
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See G.D.
Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21,
2002) (finding that the respondent registered and used the domain name in bad
faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the
confusingly similar domain name to attract Internet users to its commercial
website); see also Drs. Foster
& Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where the respondent directed Internet users seeking the
complainant’s site to its own website for commercial gain).
Furthermore, the
fact that Respondent’s domain names are merely typosquatted variations of
Complainant’s famous marks is evidence that Respondent registered and used the <chysler.com>
and <daimlerchysler.com> domain names in bad faith pursuant to
Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA
175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that
the <dermatalogica.com> domain name was a “simple misspelling” of the
complainant's DERMALOGICA mark which indicated typosquatting and
bad faith pursuant to Policy 4(a)(iii)); see also K.R.
USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration
and use of the <philadelphiaenquirer.com> and
<tallahassedemocrat.com> domain names capitalized on the typographical
error of Internet users seeking the complainant's THE PHILADELPHIA
INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith
pursuant to Policy ¶ 4(a)(iii)).
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 <chysler.com> and <daimlerchysler.com>
domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated:
September 7, 2005
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