GENERAL MOTORS LLC v. kun ren
Claim Number: FA2303002037735
Complainant is GENERAL MOTORS LLC (“Complainant”), represented by Anessa Kramer of Honigman LLP, Michigan, USA. Respondent is kun ren (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chevroletbaseball.com>, registered with DropCatch.com 487 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on March 28, 2023; Forum received payment on March 28, 2023.
On March 28, 2023, DropCatch.com 487 LLC confirmed by e-mail to Forum that the <chevroletbaseball.com> domain name is registered with DropCatch.com 487 LLC and that Respondent is the current registrant of the name. DropCatch.com 487 LLC has verified that Respondent is bound by the DropCatch.com 487 LLC 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 March 29, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2023 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@chevroletbaseball.com. Also on March 29, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On April 20, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
Complainant states that it is a well-known manufacturer of cars and trucks, and is one of the world’s largest automakers. Complainant’s vehicles are sold in the United States and in more than 120 countries around the world, through four major divisions, namely, GMC, Cadillac, Buick and Chevrolet. Complainant first began business under the CHEVROLET and GMC brands in 1911 and vehicle sales in the United States commenced with the 1912 model year CHEVROLET Series C Classic Six. Complainant has been using the CHEVY mark in connection with CHEVROLET vehicles since at least 1961, and today, both Complainant and consumers refer to the brand as both CHEVROLET and CHEVY. Since Complainant introduced its vehicles in the United States and around the world, Complainant has spent substantial sums of money to promote and advertise the brands. Complainant’s marketing, advertising, and promotion have been successful as demonstrated by the response of consumers. In 2018, Complainant sold 8.3 million vehicles worldwide, and nearly 3 million vehicles in the United States. Similarly, in 2019, Complainant sold nearly 3 million vehicles in the United States, and 7.7 million vehicles worldwide. In 2022, Complainant sold 2.27 million vehicles in the United States and reclaimed its title as America’s top automaker. Complainant led global automotive sales for 77 consecutive years from 1931 through 2007, longer than any other automotive manufacturer in history, and continues to rank among the largest global automotive manufacturers in the world. A significant portion of these vehicle sales was under the CHEVROLET brand. Complainant’s Chevrolet division has a well-established relationship with Major League Baseball. Complainant’s vehicle lineups have received numerous awards over the years. For example, Complainant was the highest ranked automaker out of 15 companies surveyed in the J.D. Power 2022 Initial Quality Study. CHEVROLET was the most awarded brand for new vehicle quality, and nine Complainant vehicles received recognition for being the highest quality in their respective categories. These vehicles include the Chevy Corvette for Best Sports Car (and ranked number one vehicle overall); the Chevy Silverado, Chevy Silverado HD, and Chevy Equinox for Best Compact Crossover; the Chevy Tahoe for Best Large SUV; the Chevy Malibu for Best Midsize Car; the Buick Encore GX for Best Small Crossover; and the Cadillac Escalade and Cadillac XT6 received awards. Finally, in 2020, Complainant’s Yantai Dongyue North in China won the J.D. Power Platinum Award for plant quality as the highest ranked automotive manufacturing facility in the world. Complainant has rights in the CHEVROLET mark through its registration in the United States in 1957. The mark is registered elsewhere around the world, including in China, and it is well known.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its CHEVROLET mark because it incorporates the mark in its entirety and merely adds the descriptive term “baseball” and the “.com” generic top-level domain (“gTLD”). Complainant cited UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the CHEVROLET mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a webpage that displays adult-oriented material and pay-per-click third-party links not related to Complainant’s business. Complainant cited UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to divert customers for commercial gain by displaying adult-oriented material and pay-per-click hyperlinks not related to Complainant. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CHEVROLET mark. Complainant cited UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CHEVROLET and uses it to market automobiles.
Complainant’s rights in its mark date back to at least 1957.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a website that displays adult-oriented material and advertising links for products and services not related to Complainant.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s CHEVROLET mark in its entirety and merely adds the descriptive term “baseball” and the “.com” generic top-level domain (“gTLD”). The addition of a gTLD and a descriptive term fails sufficiently to distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its CHEVROLET mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii),WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “kun ren”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name resolves to a page displaying adult-oriented material. Where the Respondent uses a confusingly similar domain name to display adult-oriented material, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See National Spiritual Assembly of the Bahá’ís of the United States v. Moniker Privacy Services, FA 1644005 (Forum Dec. 1, 2015) (finding that the disputed domain’s resolving website contained adult-related content, including links to commercial pornographic websites, online, dating, and news related to porn actors and the porn industry, and therefore Respondent failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use); see also Isleworth Land Co. v. Lost In Space, SA, FA 117330 (Forum Sept. 27, 2002) (finding that the respondent’s use of its domain name to link unsuspecting Internet traffic to an adult orientated website, containing images of scantily clad women in provocative poses, did not constitute a connection with a bona fide offering of goods or services or a noncommercial or fair use); see also Vivendi Universal Games v. Chang, FA 206328 (Forum Dec. 17, 2003) (finding that the respondent did not use a domain name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the domain name to divert Internet users seeking the complainant’s goods or services to pornographic material and links, while presumably earning a commission or referral fees from advertisers). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
In addition, the resolving website displays advertising hyperlinks to third-party websites not related to Complainant’s business. Where the Respondent uses a domain to redirect users to third-party services, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Therefore, on this ground also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website displays adult-oriented material. Use of a disputed domain name to display adult-oriented material may in and of itself be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See H-D U.S.A., LLC v. Nobuyoshi Tanaka / Personal, FA1312001534740 (Forum Jan. 31, 2014) (“Therefore, the Panel concludes that Respondent is acting in bad faith because Respondent is using the <harley-davidsonsales.com> domain name to tarnish Complainant’s HARLEY-DAVIDSON mark, as the Panel also finds that the content displayed on the resolving website constitutes adult-oriented content.”); see also Brown & Bigelow, Inc. v. Site Ads Inc., FA0011000096127 (Forum Jan. 11, 2001) (finding that the “[r]espondent has tarnished the Complainants mark by associating its mark with pornographic web site links, which also substantiates bad faith”); see also Youtv, Inc. v. Mr. Erkan Alemdar, FA 94243 (Forum Apr. 25, 2000) (finding bad faith where Respondent attracted users to his web site for commercial gain and linked his web site to pornographic web sites). Thus the Panel finds Respondent’s registration and use of the disputed domain name to be in bad faith pursuant to Policy ¶ 4(a)(iii).
Further, also as already noted, the resolving website contains advertising links to third party websites unrelated to Complainant’s business. Use of a domain name to resolve to a page of third-party links can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chevroletbaseball.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 21, 2023
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