Claim Number: FA0612000874857
Complainant is Toyota Motor Sales, U.S.A., Inc. (“Complainant”), represented by Victor
K. Sapphire of Jeffer, Mangels, Butler & Marmaro, LLP,
1900 Avenue of the Stars, Seventh Floor, Los Angeles, CA, 90067. Respondent is Abraham Dones (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <toyotaofclermont.com>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically December 22, 2006; the National Arbitration Forum received a hard copy of the Complaint December 27, 2006.
On January 1, 2007, Melbourne It, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <toyotaofclermont.com> domain name is registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne It, Ltd. d/b/a Internet Names Worldwide verified that Respondent is bound by the Melbourne It, Ltd. d/b/a Internet Names Worldwide registration agreement and thereby has 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 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 30, 2007, 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@toyotaofclermont.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 6, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The
domain name that Respondent registered, <toyotaofclermont.com>,
is confusingly similar to Complainant’s
2. Respondent has no rights to or legitimate interests in the <toyotaofclermont.com> domain name.
3. Respondent registered and used the <toyotaofclermont.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Toyota Motor
Sales,
Respondent, Abraham Dones, registered the <toyotaofclermont.com> domain name February 26, 2005. Respondent is using the disputed domain name to display links to Complainant and its competitors’ products. In an October 3, 2006, email from Respondent to Complainant, Respondent stated that the domain name is for sale and offered to sell the domain name to Complainant for a reasonable offer.
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 will draw such inferences as the Panel 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 Complainant to 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 of the
The disputed domain name that Respondent registered, <toyotaofclermont.com>, contains Complainant’s
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant alleged that Respondent does not have rights or legitimate interests in the <toyotaofclermont.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Because Respondent failed to respond to the Complaint, the panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO, Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
However, the Panel examines the record to determine if the record shows that Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant alleged that Respondent is not commonly known by
the <toyotaofclermont.com>
domain name. The WHOIS information
identifies Respondent as “Abraham Dones” and Complainant has alleged that
Respondent is not licensed or authorized by Complainant to use Complainant’s
Respondent is using the <toyotaofclermont.com>
domain name to display links to Complainant and to its competitors’
products. Respondent has acknowledged
earning income from advertising hits.
Respondent’s unauthorized use of Complainant’s
Respondent also offered to sell the <toyotaofclermont.com> domain name to Complainant. In Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003), the Panel found that “Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.” Similarly, in Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000), the Panel found that the respondent’s conduct purporting to sell the domain name suggested it had no legitimate use of the disputed domain name.
Based on the evidence and the above holdings, the Panel concludes that Respondent has no rights or legitimate interests in the <toyotaofclermont.com> domain name pursuant to Policy ¶ 4(a)(ii).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent is currently offering the <toyotaofclermont.com> domain name
for sale and has offered to sell it to Complainant. The Panel finds that this evidence supports
findings of bad faith registration pursuant to Policy ¶ 4(b)(i). See
Little Six, Inc. v. Domain For
Further, Respondent has caused the disputed domain name that contains in its entirety Complainant’s protected mark to display a list of links that lead Internet users seeking Complainant to websites of Complainant’s competitors. This is likely to disrupt Complainant’s business by diverting business away from Complainant. Therefore, the Panel finds that Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
The disputed domain name, <toyotaofclermont.com>,
which is confusingly similar to Complainant’s
The Panel finds that Complainant satisfied 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 <toyotaofclermont.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: February 20, 2007.
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