JAGUAR LAND ROVER LIMITED v. WILL EVERETT / HOLLYGROVE JAGUAR
Claim Number: FA1607001685996
Complainant is JAGUAR LAND ROVER LIMITED (“Complainant”), represented by Jennifer K. Ziegler of Brooks Kushman P.C., Michigan, USA. Respondent is WILL EVERETT / HOLLYGROVE JAGUAR (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hollygrovejaguar.com>, registered with eNom, Inc.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 28, 2016; the Forum received payment on July 28, 2016.
On July 29, 2016, eNom, Inc. confirmed by e-mail to the Forum that the <hollygrovejaguar.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 August 4, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 24, 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@hollygrovejaguar.com. Also on August 4, 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 September 6, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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
Policy ¶ 4(a)(i)
Complainant has rights in the JAGUAR mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 423,961, registered on Feb. 20, 1905). Respondent’s <hollygrovejaguar.com> domain name is confusingly similar to the JAGUAR mark because it contains the mark along with the geographic indicator “hollygrove” and the generic top-level domain (“gTLD”) “.com.”
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <hollygrovejaguar.com> domain name as it is not affiliated with Complainant. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is used to take advantage of the reputation and goodwill of Complainant by purporting to offer services in direct competition with Complainant on a website designed to create a false impression of association with Complainant.
Policy ¶ 4(a)(iii)
Respondent uses the <hollygrovejaguar.com> domain name in bad faith because the resolving website is used to take advantage of the reputation and goodwill of Complainant by purporting to offer services in direct competition with Complainant on a website designed to create a false impression of association with Complainant. Respondent registered the <hollygrovejaguar.com> domain name in bad faith because it did so with actual knowledge of Complainant’s JAGUAR mark as demonstrated through Respondent’s use of the domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is JAGUAR LAND ROVER LIMITED of Coventry, United Kingdom. Complainant is the owner of domestic and international registrations for the mark JAGUAR which it has used continuously since at least as early as 1935 in connection with the production and sale of motor vehicles.
Respondent is WILL EVERETT / HOLLYGROVE JAGUAR, of Hampshire, Great Britain. Respondent’s registrar’s address is unlisted. The Panel notes that the <hollygrovejaguar.com> domain name was created on or about February 24, 2010.
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 claims rights in the JAGUAR mark through its registration with the USPTO (Reg. No. 423,961, registered Feb. 20, 1905), which it uses in the promotion, advertising, sale, and production of vehicles and related services. Complainant has provided evidence of domestic and international registrations for its mark. As such, the Panel finds that Complainant holds rights in the JAGUAR mark. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i).).
Complainant maintains that Respondent’s <hollygrovejaguar.com> domain name is confusingly similar to the JAGUAR mark because it contains the mark along with the geographic indicator “hollygrove” and the gTLD “.com.” Prior panels have found that geographic indicators and gTLD’s are insufficient to distinguish a domain name from a mark. See Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity.); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). The Panel here finds that the <hollygrovejaguar.com> domain name is confusingly similar to the JAGUAR mark according to Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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), 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 (Nat. Arb. 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). The Complainant has met this burden.
Complainant asserts that Respondent is not commonly known by the <hollygrovejaguar.com> domain name as it is not affiliated with Complainant. The Panel notes that while the available WHOIS information indicates “WILL EVERETT / HOLLYGROVE JAGUAR” as Registrant, Complainant denies that Respondent has been so commonly known. The Panel further notes that Respondent has failed to provide any evidence to contradict Complainant’s assertions. Based on the conflicting data and Respondent’s failure to address the matter the Panel finds that Respondent is not commonly known by the <hollygrovejaguar.com> domain name according to Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant contends that Respondent fails to use the <hollygrovejaguar.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is used to take advantage of the reputation and goodwill of Complainant by purporting to offer services and products in direct competition with Complainant on a website designed to create a false impression of association with Complainant. Complainant argues that the resolving website includes claims that Respondent includes “Independent Jaguar Specialists” and “expert Jaguar technicians” and that Respondent is one of the “leading Jaguar service centres in Southern England.” Complainant also maintains that the website appears to sell services for Complainant’s JAGUAR branded products in direct competition with Complainant. Complainant has provided screenshots of the <hollygrovejaguar.com> domain name, as well as screenshots of its own website, for comparison. The Panel here finds that Respondent fails to use the domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant alleges that Respondent uses the <hollygrovejaguar.com> domain name in bad faith because the resolving website is used to take advantage of the reputation and goodwill of Complainant by purporting to offer services in direct competition with Complainant on a website designed to create a false impression of association with Complainant. Complainant maintains that the resolving website claims that Respondent offers “Independent Jaguar Specialists” and “expert Jaguar technicians” and that Respondent is one of the “leading Jaguar service centres in Southern England.” Complainant also contends that the website appears to sell services for Complainant’s JAGUAR branded products in direct competition with Complainant. Complainant has provided screenshots of the <hollygrovejaguar.com> domain name, as well as screenshots of its own website, to support its contentions. Past panels have found behavior such as that described above indicative of bad faith. 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).”); see also CAN Financial Corporation v. William Thomson / CAN Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). The Panel here finds that Respondent registered and uses the domain in bad faith according to Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <hollygrovejaguar.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: Sept. 20, 2016
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