Westmore · UDRP DecisionArnoldclarkcarhire.com
The Panel ordered transfer of <arnoldclarkcarhire.com>. It found the Domain Name confusingly similar to the Complainant’s registered ARNOLD CLARK mark because it incorporated the mark and added the descriptive terms “car hire,” which referred directly to part of the Complainant’s business. The Respondent lacked rights or legitimate interests, and the Domain Name was registered and used in bad faith to attract Internet users for commercial gain through confusion concerning a connection with the Complainant.
The timeline behind arnoldclarkcarhire.com
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This decision illustrates a strong trademark-plus-descriptive-term fact pattern. Adding words that directly identify the trademark owner’s line of business did not distinguish the Domain Name; on the facts found by the Panel, it reinforced the confusing association. The website’s prominent use of the mark and redirection to an unrelated booking service connected the composition of the Domain Name with deceptive commercial use.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Arnold Clark Automobiles Limited v. Tate David Case No. D2015-1823 1. The Parties The Complainant is Arnold Clark Automobiles Limited of Glasgow, United Kingdom of Great Britain and Northern Ireland (“UK”), represented by Demys Limited, UK. The Respondent is Tate David of London, UK. 2. The Domain Name and Registrar The disputed domain name <arnoldclarkcarhire.com> (the “Domain Name”) is registered with EuroDNS S.A. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 13, 2015. On October 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 13, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on October 23, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 12, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 13, 2015. The Center appointed Dawn Osborne as the sole panelist in this matter on November 23, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background Founded in 1954, the Complainant is Europe’s largest independently owned family run car dealership with over 200 new and used car dealerships throughout the UK. It operates a car and van rental service from 35 locations within the UK. It operates its rental booking service from “www.arnoldclarkrental.com”. The Complainant is the registrant of UK trade mark registered April 4, 1997 for ARNOLD CLARK for services related to its business. The Respondent appears to be an individual based in London. The Domain Name was registered on October 15, 2006. The web site associated with it is prominently headed “Arnold Clark car hire/powered by TIPOA CAR HIRE.” Users who complete the booking form are redirected to a booking web site at “www.secure.tipoa.com” which is not connected with the Complainant. 5. Parties’ Contentions A. Complainant The Complainant’s contentions can be summarized as follows: Founded in 1954, the Complainant is Europe’s largest independently owned family run car dealership with over 200 new and used car dealerships throughout the UK. It operates a car and van rental service from 35 locations within the UK. It operates its rental booking service from “www.arnoldclarkrental.com”. The Complainant is the registrant of UK trade mark registered April 4, 1997 for ARNOLD CLARK for services related to its business. The Respondent appears to be an individual based in London. The Domain Name was registered on October 15, 2006. The web site associated with it is prominently headed “Arnold Clark car hire/powered by TIPOA CAR HIRE.” Users who complete the booking form are redirected to a booking web site at “www.secure.tipoa.com”. The Respondent appears to make use of an affiliate scheme through which he will receive commission when users click through from the Domain Name to this site. The words “car hire” in the Domain Name are entirely descriptive of the Complainant’s car rental business. They are wholly generic and do nothing to distinguish the Domain Name from the Complainant’s ARNOLD CLARK mark. In fact given that “car hire” is entirely referable to the Complainant’s business they add to the confusing similarity between the Complainant’s mark and the Domain Name. The generic Top-Level Domain “.com” is wholly generic in that it is required only for technical reasons and, as is customary under the Policy should be disregarded for the purposes of comparison with the Complainant’s trade mark. The Respondent does not have any rights or legitimate interests in the Domain Name. It is not commonly known by the Domain Name; it is not licensed by the Complainant and has not received any permission to use the Complainant’s mark. The Respondent does not have any trade marks related to the Domain Name and there is no evidence it has traded as “Arnold Clark Car Hire”. The Respondent’s use cannot be legitimate noncommercial or fair use given the use of the Domain Name for commercial purposes through its association with a monetized affiliate scheme. This is essentially identical to a traditional pay-per-click scheme and cannot confer any rights or legitimate interests on the Respondent. The Respondent has not put forward any reason why he has a legitimate interest in the Domain Name. The Respondent must have had the Complainant in mind when he registered a domain name containing the Complainant's ARNOLD CLARK trade mark and the words “car hire” describing the Complainant’s business. It is well established under the Policy that in most circumstances the display of pay-per-click advertising in conjunction with a domain name in which the Complainant’s trade mark is the dominant element is sufficient on its own for a finding of bad faith. The Respondent’s use will inevitable cause confusion amongst web users searching for the Complainant’s services. This is intentionally attempting to attract for commercial gain web users to the Respondent’s web site by creating a likelihood of confusion amongst web users seeking to hire vehicles from the Complainant. This is also disruption of the Complainant’s business. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, the Complainant must prove that: (i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) The Domain Name has been registered and is being used in bad faith. A. Identical or confusing similarity The Complainant has a UK trade mark registration for ARNOLD CLARK for its vehicle related services with use going back to 1954. The Domain Name is confusingly similar to the Complainant’s trade mark consisting of the Complainant’s registered trade mark and the terms “car hire”, being a descriptive term for a substantial part of the business in which the Complainant is engaged. The distinctive part of the Domain Name is the ARNOLD CLARK trade mark. The addition of the non-distinctive text “car hire” does nothing to prevent the confusing similarity of the Domain Name with the Complainant's trade mark; in fact given that it describes part of the Complainant’s business confusing similarity is increased. The gTLD “.com” is typically disregarded in assessing confusing similarity under this first requirement of paragraph 4(a) of the Policy. As such the Panel holds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights for the purpose of the Policy. B. Rights or Legitimate Interests of the Respondent The Respondent has not filed a Response. He has no consent from the Complainant, has not used the Domain Name for a bona fide offering of goods and services given the confusing use, as discussed below, and is not commonly known by the Domain Name. Nor is he making noncommercial fair use of it given the manifest commercial use. In the circumstances of this case, and in view of the Panel’s discussion below, the Panel finds that the second element of paragraph 4(a) of the Policy has been established. C. Registered and Used in Bad Faith Paragraph 4(b) of the Rules sets out four non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including: “by using the domain name [the Respondent] has intentionally attempted to attract, for commercial gain, Internet users to [his] website or other on line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation or endorsement of [his] website or location or of a product or service on [his] website or location.” The Respondent has not provided any explanation why he would be entitled to register a domain name equivalent to the Complainant’s trade mark with only generic terms added which reflect car hire business, the same area in which the Complainant operates. Further, in the opinion of the Panel the use made of the Domain Name is deceptive. It is not at all clear whether the site to which the Domain Name points is or is not connected with the Complainant. As such the Panel finds that the Domain Name has been used in a way likely to confuse people into believing the Domain Name was registered to or connected to the Complainant. The use of the trade marks on the site shows that the Respondent is well aware of the Complainant, its trade marks and area of business. In the absence of a Response from the Respondent, considering the well established nature of the Complainant and the material attached to the website at the Domain Name the Panel is satisfied that the Complainant has shown that the Respondent registered the Domain Name in bad faith and has used the Domain Name to attract Internet traffic to his site for commercial gain by creating a likelihood of confusion that his website or the services offered on it are connected to the Complainant. As such the Panel finds that the Domain Name has been registered and used in bad faith satisfying the third limb of paragraph 4(a) of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <arnoldclarkcarhire.com> be transferred to the Complainant. Dawn Osborne Sole Panelist Date: December 7, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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