Westmore · UDRP DecisionDrivebigger.com
The Panel ordered transfer of <drivebigger.com>. Although the Complainant's pending intent-to-use application did not itself establish UDRP trademark rights, the Panel found that the Complainant had developed rights in DRIVE BIGGER through a significant national advertising campaign by the time of the Complaint. The domain was confusingly similar to that mark. The Panel also found no rights or legitimate interests and concluded that the Respondent more likely than not knew of and sought to capitalize opportunistically on the Complainant's nascent rights, based principally on registration three days after the trademark application, the USD 10,000 sale offer, the timing of the advertising campaign, and the absence of any contrary explanation.
The timeline behind drivebigger.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind drivebigger.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates the distinction between standing under the first UDRP element and bad-faith timing under the third. The Panel accepted trademark rights developed after domain registration but before the Complaint for element one, while separately requiring evidence that the Respondent targeted the Complainant's nascent rights when registering the domain. The unusual timing, exact-match registration, immediate five-figure sale offer, and absence of an alternative explanation together supported that conclusion.
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 Volkswagen Group of America, Inc. v. Super Privacy Service Ltd. c/o Dynadot Case No. D2019-2521 1. The Parties Complainant is Volkswagen Group of America, Inc., United States of America (“United States” or “U.S.”), represented by Phillips Ryther & Winchester, United States. Respondent is Super Privacy Service Ltd. c/o Dynadot, United States. 2. The Domain Name and Registrar The disputed domain name <drivebigger.com> is registered with Dynadot, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 15, 2019. On October 15, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 16, 2019, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on October 17, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 6, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 7, 2019. The Center appointed Georges Nahitchevansky as the sole panelist in this matter on November 15, 2019. 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 Complainant, Volkswagen Group of America, Inc., is a wholly owned subsidiary of Volkswagen AG, a leading automobile manufacturer. Complainant houses the U.S. operations of a worldwide family of automobile brands including Audi, Bentley, Bugatti, Lamborghini, and Volkswagen, as well as VW Credit, Inc. On May 7, 2019, Complainant filed an intent-to-use application to register the mark and slogan DRIVE BIGGER in the United States (Serial No. 88418321) in connection with motor vehicles, motor vehicle parts, and a range of other related goods. At some point shortly thereafter, Complainant launched a national advertising campaign in the United States featuring the mark and slogan DRIVE BIGGER, and by early June 2019, Complainant was airing television commercials based on the DRIVE BIGGER mark and slogan. Respondent, whose true identity remains unknown, registered the disputed domain name on May 10, 2019. Shortly thereafter, the disputed domain name redirected to a web page at <undeveloped.com> which offered the disputed domain name for sale, specifying that “your offer must be higher than $10,000”. On July 2, 2019, the disputed domain name resolved to a similar web page located at <dan.com>. Complainant’s representative sent a demand letter on July 22, 2019, to Undeveloped BV, the operator of the websites at <undeveloped.com> and <dan.com>. Undeveloped BV responded that it did not own the disputed domain and was solely an operator of a domain name marketplace connecting buyers and sellers of unused domain names. Undeveloped BV did not disclose the identity of the registrant of the disputed domain name. After some communications between Undeveloped BV and Complainant’s representative, Undeveloped BV advised that it would forward Complainant’s July 22, 2019, demand letter, as well as an additional letter from Complainant’s representative dated August 5, 2019, to Respondent. No response to Complainant’s demand letters was apparently ever received from Respondent. Currently, the disputed domain name resolves to a web page at <dan.com> that offers the domain name for sale by a “Private Seller”. 5. Parties’ Contentions A. Complainant Complainant argues that it owns rights in the mark DRIVE BIGGER on account of its intent-to-use application for the mark on May 7, 2019, and its subsequent use of the DRIVE BIGGER mark in its national advertising campaign starting in June 2019. Complainant contends that the disputed domain name is confusingly similar to Complainant’s DRIVE BIGGER mark as it fully and solely consists of the DRIVE BIGGER mark. Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name as Respondent (i) is not known by the disputed domain name, (ii) has not been authorized by Complainant to use the DRIVE BIGGER mark, (iii) has no affiliation to Complainant, and (iv) has not made any bona fide use of the disputed domain name. In that regard, Complainant contends that Respondent has not used the disputed domain name with an operational website, but merely registered the disputed domain name that is based on the DRIVE BIGGER mark three days after Complainant filed its trademark application to register the DRIVE BIGGER mark in the United States, and then started to advertise the sale of the disputed domain name with a minimum price of USD 10,000. Lastly, Complainant argues that Respondent has acted in bad faith as Respondent registered the unusual and distinctive phrase “drive bigger” immediately after Complainant filed an application to register the phrase as a trademark. Complainant maintains that Respondent made an anticipatory filing before Complainant’s trademark rights accrued for purposes of profiting from such in bad faith. Complainant further argues that Respondent’s bad faith is established by Respondent’s attempt to sell the disputed domain name in excess of USD 10,000. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. See section 4.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”). A. Identical or Confusingly Similar While Complainant’s pending trademark application for DRIVE BIGGER does not by itself establish trademark rights within the meaning of UDRP paragraph 4(a)(i), there is evidence before the Panel that Complainant has made use of the mark DRIVE BIGGER as part of a significant advertising campaign during the summer of 2019. Thus for purposes of the first element only, Complainant has demonstrated that it had developed rights in the mark DRIVE BIGGER by the time Complainant filed its Complaint on October 14, 2019. WIPO Overview 3.0 at section 1.1.3 . With Complainant’s rights in the DRIVE BIGGER mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross , WIPO Case No. D2010-0842 . Here, the disputed domain name is identical or confusingly similar to Complainant’s DRIVE BIGGER mark as it incorporates the DRIVE BIGGER mark in its entirety in the disputed domain name. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s DRIVE BIGGER mark and in showing that the disputed domain name is confusingly similar to that trademark. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International , WIPO Case No. D2008-1393 . Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP. The evidence submitted in this proceeding shows that Respondent has not made any use of the disputed domain name in connection with a website or web page since registering it on May 10, 2019. The evidence before the Panel is that Complainant filed an intent-to-use application for the mark DRIVE BIGGER and that three days later Respondent registered the disputed domain name and then started to offer it for sale for USD 10,000 on the domain name marketplace platforms at <undeveloped.com> and then <dan.com>. While the Panel is mindful that Complainant did not have established trademark rights in DRIVE BIGGER at the time Respondent registered the disputed domain name, it appears suspicious that Respondent registered the exact phrase days later in the disputed domain name and started to offer the disputed domain name for sale for USD 10,000. The evidence before the Panel, none of which is contested by Respondent who has chosen not to appear, suggests that Respondent’s intent was to capitalize on Complainant’s nascent trademark rights in DRIVE BIGGER. Indeed, what makes matters more suspicious is the fact that Respondent was likely made aware of Complainant’s demand letters, given that Undeveloped BV advised that it was forwarding the demand letters to Respondent, and that Respondent then chose not to respond or provide any explanation for its actions. While the phrase “drive bigger” has a meaning in the context of, for example, saying someone is driving a larger vehicle ( e.g. , “we drive bigger cars than John”), there is nothing in the record showing that this was the case as opposed to Respondent immediately trying to profit from Complainant’s adoption of the DRIVE BIGGER mark. Given that Complainant has established with sufficient evidence that it owns rights in the DRIVE BIGGER mark, and given Respondent’s above noted actions and failure to appear, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith Given that Respondent registered the disputed domain name three days after Complainant filed a trademark application to register the DRIVE BIGGER mark and did so within less than a month before Complainant, a famous automobile manufacturer, launched a major national advertising campaign with television commercials based on the DRIVE BIGGER mark and slogan, it appear more likely than not that Respondent was aware of Complainant’s adoption of DRIVE BIGGER and sought to opportunistically capitalize on Complainant’s nascent trademark rights in bad faith. WIPO Overview at section 3.8.2 . Respondent has had multiple opportunities to explain and justify how Respondent came to register the disputed domain name, but has failed to do so. Indeed, the fact that Respondent has chosen to completely conceal its identity and has elected not to appear in this proceeding underscores that Respondent likely has no valid explanation for Respondent’s actions, which to this Panel appear on the evidence submitted to have been undertaken in bad faith. Accordingly, the Panel finds that Complainant succeeds under this element 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 <drivebigger.com> be transferred to Complainant. Georges Nahitchevansky Sole Panelist Date: December 2, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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