DECISION

 

General Motors LLC v. Muhammad Muzammal Hussain / FreshNist Media

Claim Number: FA2311002070907

 

PARTIES

Complainant is General Motors LLC ("Complainant"), represented by Anessa Owen Kramer of Honigman LLP, Michigan, USA. Respondent is Muhammad Muzammal Hussain / FreshNist Media ("Respondent"), Pakistan.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <gmeurope.com>, registered with Dynadot Inc, Dynadot Llc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 13, 2023; Forum received payment on November 13, 2023.

 

On November 14, 2023, Dynadot Inc, Dynadot Llc confirmed by e-mail to Forum that the <gmeurope.com> domain name is registered with Dynadot Inc, Dynadot Llc and that Respondent is the current registrant of the name. Dynadot Inc, Dynadot Llc has verified that Respondent is bound by the Dynadot Inc, Dynadot 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 November 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 11, 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@gmeurope.com. Also on November 20, 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 December 12, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

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. Since Complainant introduced its vehicles in the United States and around the world, it 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 2020, Complainant sold 6.8 million vehicles worldwide, and nearly over 2.5 million vehicles in the United States. Similarly, in 2021, Complainant sold nearly 6.3 million vehicles worldwide and over 2.2 million vehicles in the United States. In 2022, Complainant sold nearly 6 million vehicles worldwide and 2.27 million vehicles in the United States; Complainant also reclaimed its title as American's top automotive manufacturer. 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. Complainant and its strategic partners produce cars and trucks in dozens of countries. Genuine GM Parts and accessories are sold under the GM mark, among others, through GM Service and Parts Operations, which supplies GM dealerships and distributors worldwide. There are more than 6,000 GM dealerships in the United States alone. Through official licensed dealerships and other authorized service providers, Complainant offers a full range of automotive products and automotive repair and maintenance services to owners of GM vehicles across the United States and the world. In 1986, Complainant established a subsidiary called General Motors Europe, which operated 14 production and assembly facilities in 9 European countries and employed around 54,000 people. General Motors Europe was often abbreviated and referenced as GM Europe. Its core brands were Vauxhall, Opel, Saab, and Chevrolet. After Vauxhall, Opel, and Saab were sold off, GM Europe ceased operations in 2017. Before its exit, Complainant had occupied the European market for 90 years. Complainant recently announced that it will return to the European auto market in 2023. Complainant asserts rights in the mark GM through its registration in the United States in 1930. The mark is registered elsewhere around the world and it is famous.

 

Complainant alleges that the disputed domain name is confusingly similar to its GM mark because it incorporates the mark in its entirety and merely adds the geographic term "Europe" together with the ".com" generic top-level domain ("gTLD"). Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is neither commonly known by the disputed domain name nor has Complainant authorized Respondent to use its mark. Respondent is not using the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial fair use. Instead, the disputed domain name is not being used. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The disputed domain name is not being used. Respondent had actual or constructive knowledge of Complainant's mark. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark GM and uses it to market automobiles and related services.

 

Complainant's rights in its mark date back to 1930.

 

The disputed domain name was registered in 2013.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain name is not being used.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The disputed domain name incorporates Complainant's GM mark in its entirety and merely adds the geographic term "Europe" together with the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or geographic terms generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also 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 under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), the Panel may look to the WHOIS information to determine whether Respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named "Fred Wallace" as registrant of the disputed domain name). The WHOIS information on record lists "Muhammad Muzammal Hussain / FreshNist Media" as the registrant name. Therefore, the Panel concludes that Respondent is not commonly known by the disputed domain name.

 

The disputed domain name is not being used. Failure to make an active use of a domain name demonstrates that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) ("Respondent is wholly appropriating Complainant's mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant's mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii)."). Therefore, the Panel finds that Respondent is not using the disputed domain name to make 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). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

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 disputed domain name is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): "From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or "coming soon" page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant's mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent's concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put."

 

In the present case, Complainant's trademark is well known. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) ("Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy"); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant's well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int'l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) ("The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith").

 

There has been no response to the Complaint and Respondent used a privacy service, that is, it attempted to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <gmeurope.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: December 12, 2023