JAGUAR LAND ROVER LIMITED v. linares munoz daniel enrique
Claim Number: FA1606001680852
Complainant is JAGUAR LAND ROVER LIMITED (“Complainant”), represented by Jennifer K. Ziegler of Brooks Kushman P.C., Michigan, United States. Respondent is linares munoz daniel enrique (“Respondent”), Columbia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jaguarproducciones.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 23, 2016; the Forum received payment on June 23, 2016.
On June 25, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <jaguarproducciones.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@jaguarproducciones.com. Also on June 29, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 22, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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’s Contentions
1. Complainant uses the JAGUAR mark in connection with its business of manufacturing automobiles and sport utility vehicles. Complainant has registered the JAGUAR mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 423,961, registered Sept. 17, 1946), which establishes rights in the mark. See Compl., at Attached Ex. C. Respondent’s <jaguarproducciones.com> domain name is confusingly similar to the JAGUAR mark as it incorporates the mark in its entirety, attaches the descriptive terminology “producciones,” the Spanish equivalent of the word “productions,” and adds the generic top-level domain (“gTLD”) “.com.”
2. Respondent has no rights or legitimate interests in the <jaguarproducciones.com> domain name. Respondent is not commonly known by the disputed domain name. See Compl., at Attached Ex. B. Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, through the <jaguarproducciones.com> domain name. Rather, the domain name resolves to a commercial website that prominently features the JAGUAR logo and offers Respondent’s entertainment services, services that consumers would expect to find on Complainant’s legitimate website (<jaguar.com>). See Compl., at Attached Ex. L.
3. Respondent is using the domain in bad faith. First, Respondent’s use of the domain serves as a disruption of Complainant’s legitimate business purposes. Second, Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. Third, Respondent did not comply with a cease and desist letter sent by Complainant and is still using the disputed domain name and the JAGUAR mark. Lastly, Respondent registered the disputed domain with actual knowledge of the JAGUAR mark and Complainant’s rights therein because of Respondent’s use of Complainant’s Leaper Design (stylized rendering of a leaping feline, which Complainant uses alone and in combination with the JAGUAR mark) on Respondent’s resolving webpage.
B. Respondent’s Contentions
1. Respondent did not submit a response for the Panel’s consideration.
1. Respondent’s <jaguarproducciones.com> domain name is confusingly similar to Complainant’s JAGUAR mark.
2. Respondent does not have any rights or legitimate interests in the < <jaguarproducciones.com> domain name.
3. Respondent registered or used the <jaguarproducciones.com> domain name in bad faith.
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."
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.
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(f), 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 (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.”).
Complainant uses the JAGUAR mark in connection with its business of manufacturing automobiles and sport utility vehicles. Complainant purports it has registered the JAGUAR mark with the USPTO (e.g., Reg. no. 423.961, registered Sept. 17, 1946), and argues that its demonstration of a trademark registration is sufficient in establishing Policy ¶ 4(a)(i) rights in the JAGUAR mark. Panels have found that a complainant’s valid USPTO registration is sufficient in establishing rights in the mark per Policy ¶ 4(a)(i), irrespective of a respondent’s country of origin. See Advance Auto Parts, Inc. d/b/a Advance Auto Innovations, LLC v. Privacy Ltd. Disclosed Agent for YOLAPT / Domain Admin, FA 1625582 (Forum July 23, 2015) (holding that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i), even though Respondent reportedly resides in the Isle of Man). Therefore, this Panel finds that Complainant has established Policy ¶ 4(a)(i) rights in the JAGUAR mark.
Next, Complainant argues that Respondent’s <jaguarproducciones.com> domain name is confusingly similar to the JAGUAR mark as it incorporates the mark in its entirety, attaches the descriptive terminology “producciones,” the Spanish equivalent to the word “productions,” and adds the gTLD “.com.” Panels have found that such alterations to a mark are insufficient in overcoming a finding of confusing similarity under Policy ¶ 4(a)(i). See Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel agrees that Respondent’s <jaguarproducciones.com> domain name is confusingly similar to the JAGUAR mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <jaguarproducciones.com> domain name. To begin, Complainant asserts that Respondent is not commonly known by the disputed domain name. The Panel’s attention is directed to Complainant’s Exhibit B, the WHOIS information regarding the disputed domain name, listing “linares munoz daniel enrique” as registrant of record. Respondent has failed to submit a response in this proceeding. Therefore, in light of the available evidence, this Panel agrees that there is no basis to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant argues that Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, through the domain. Rather, Complainant contends that the domain resolves to an active website prominently displaying the JAGUAR logo and offering services that consumers would expect to find on Complainant’s legitimate website (<jaguar.com>), and services that are unrelated to Complainant’s business. See Compl., at Attached Ex. L. Panels have found such use by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Vanderbilt Univ. v. U Inc., FA 893000 (Forum Feb. 19, 2007) (holding that the respondent did not have rights or legitimate interests in a domain name where it was redirecting Internet users to its own website promoting the respondent’s books unrelated to the complainant). Therefore, this Panel finds that Respondent’s use of the domain constitutes neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant argues that Respondent’s use of the <jaguarproducciones.com> domain serves as a disruption of Complainant’s legitimate business purposes pursuant to Policy ¶ 4(b)(iii) because of Respondent’s offered services, which are both competitive with and are unrelated to Complainant, at its resolving webpage. See Compl., at Attached Ex. L. Panels have found that such use constitutes bad faith disruption under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”)). Therefore, this Panel agrees that Respondent’s domain falls within the purview of Policy ¶ 4(b)(iii).
Further, Complainant contends that Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website due to the inclusion of Respondent’s services on its resolving website, services that Complainant argues are both competitive with, and unrelated to, Complainant’s business. See Compl., at Attached Ex. L. Panels have found, and this Panel may find, that a respondent’s use of a domain to promote services that are in direct competition with a complainant’s business constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) because the respondent initially used the disputed domain name to sell educational services that targeted the complainant’s market).
Complainant alleges that Respondent did not comply with a cease and desist letter that was sent by Complainant to Respondent. See Compl., at Attached Ex. N. Complainant provides evidence that Respondent responded to the cease and desist letter; Complainant argues, however, that Respondent refused to comply with the letter’s demands. For example, despite Complainant’s demand to Respondent to “modify the trade name and the company name JAGUAR PRODUCCIONES,” Respondent apparently refused to modify the domain, stating that “our business is very different from your client’s business.” See Compl., at Attached Exs. N–O. Panels have held that lack of a response to a cease and desist letter is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Guccio Gucci S.p.A. v. Domain Administrato - Domain Administrator, D2010-1589 (WIPO Nov. 3, 2010) (“The Panel also considers the failure of the Respondent to respond to the Complainant’s letters of demand and failure to file a Response to the Complaint further support an inference of bad faith.”). The Panel finds that Respondent’s response is essentially the equivalent of a nonresponse, and finds that Respondent has engaged in bad faith pursuant to Policy ¶ 4(a)(iii).
Finally, Complainant contends that given the use by Respondent of
Complainant’s Leaper Design on its resolving website, it is inconceivable that Respondent could have registered the domain without actual knowledge of Complainant's rights in the mark. The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name, and may find that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <jaguarproducciones.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
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