Parknfly.com, Parknflyfree.com, Parkandflyfree.com

The timeline behind parknfly.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

How each disputed name was decided in this proceeding.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION Park 'N Fly Service Corp. v. Level Propane Claim Number: FA0109000099656 PARTIES Complainant is Park 'N Fly Service Corp., Atlanta, GA ("Complainant") represented by David M. Maxwell, of Alston & Bird. Respondent is Level Propane, Westlake, OH ("Respondent"). REGISTRAR AND DISPUTED DOMAIN NAMES The three domain names at issue are <parknflyfree.com>, and <parkandflyfree.com>, registered with Network Solutions and <parknfly.com>, registered with Namesecure. PANEL 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. James A. Carmody, Esq., as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on September 4, 2001; the Forum received a hard copy of the Complaint on September 5, 2001. On September 6, 2001, Network Solutions and Namesecure confirmed by e-mail to the Forum that the domain names <parknflyfree.com>, and <parkandflyfree.com> are registered with Network Solutions and <parknfly.com> regsitered with Namesecure; and that Respondent is the current registrant of the name. Network Solutions and Namesecure have verified that Respondent is bound by the Network Solutions 4.0 registration agreement and the Namesecure registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy"). On September 10, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 1, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@parknfly.com, parknflyfree.com, parkandflyfree.com by e-mail. The parties requested and were granted extensions for the Response, setting the deadline to October 18, 2001. Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default. On October 24, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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." 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. RELIEF SOUGHT Complainant requests that the domain names be transferred from the Respondent to the Complainant. PARTIES’ CONTENTIONS Complainant The <parknfly.com> domain name is identical to Complainant’s PARK ‘N FLY mark. The <parknflyfree.com> and <parkandflyfree.com> domain names are confusingly similar to Complainant’s PARK ‘N FLY mark. Respondent has no rights or legitimate interests with respect to <parknfly.com>, <parknflyfree.com>, and <parkandflyfree.com>. Respondent registered <parknfly.com>, <parknflyfree.com>, and <parkandflyfree.com> in bad faith. B. Respondent No Response was received. FINDINGS Complainant has registered the PARK N’ FLY service mark with the USPTO. This is evidence of Complainant’s exclusive right to use the mark. Further, Complainant has continuously used the mark in conjunction with its airport parking services since 1967. Finally, it runs an extensive business using 15 facilities in twelve cities throughout the United States. Although Respondent is identified as Level Propane, the owner of Level Propane, Mr. Maloof, also owns an airport parking service to which some of these domain names were connected. Respondent registered the domain names <parknflyfree.com> and <parkandflyfree.com> on September 28, 1999 with Network Solutions. These domain names connect Internet users to Respondent’s website for its competing airport parking services. Respondent also registered <parknfly.com> on February 27, 2000 with Namesecure.com. This domain names remains inactive. Complainant has requested that Respondent transfer the domain names, but Respondent refused. DISCUSSION 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." In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules. Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the 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. Identical and/or Confusingly Similar The <parknfly.com> domain name is identical to Complainant’s PARK ‘N FLY mark. The addition of ".com" does not properly distinguish the domain name from Complainant’s mark. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) ".com" after the name POMELLATO is not relevant); see also Little Six, Inc., v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding that the <mysticlake.net> is plainly identical to Complainant’s MYSTIC LAKE trademark and service mark). Respondent’s <parknflyfree.com> and <parkandflyfree.com> domain names are confusingly similar to Complainant’s mark. The addition of a generic word like "free" does not properly distinguish these two confusingly similar domain names from Complainant’s mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with a generic word or term); see also Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to Complainant’s BROADCOM mark). The Panel finds that Policy 4(a)(i) has been satisfied. Rights or Legitimate Interests Respondent does not have rights or legitimate interests in <parknflyfree.com> or <parkandflyfree.com> because it did not use them to make a bona fide offering of goods. Using domain names confusingly similar to Complainant’s mark to attract users to the Respondent’s competing website is not a bona fide offering of goods. See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from the Complainant's site to a competing website); see also The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that Respondent’s use of the disputed domain names is confusingly similar to Complainant’s mark. Respondent’s use of the domain names to sell competing goods was an illegitimate use and not a bona fide offering of goods). Respondent does not have rights or legitimate interests in <parknfly.com> because passively holding this domain name is not a bona fide offering of goods. See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in said domain name); see also State Fair of Texas v. State Fair Guides, FA 95066 (Nat. Arb. Forum July 25, 2000) (finding that Respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name). Respondent does not have rights or legitimate interests in <parknfly.com>, <parknflyfree.com>, or <parkandflyfree.com> because Respondent was not commonly known by the name. Respondent’s parking business is known as "ParkPlace". See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use). Respondent does not have rights or legitimate interests in <parknflyfree.com> or <parkandflyfree.com> because Respondent did not use the domain names for a fair use. Respondent used them to attract Complainant’s potential customers to Respondent’s competing website. See Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark). Respondent does not have legitimate interests in <parknfly.com> because Respondent’s passive holding of the domain name identical to Complainant’s mark is not a fair use. See Chanel, Inc. v. Heyward, D2000-1802 (WIPO Feb. 23, 2001) (finding no rights or legitimate interests where "Respondent registered the domain name and did nothing with it"); see also Flor-Jon Films, Inc. v. Larson, FA 94974 (Nat. Arb. Forum July 25, 2000) (finding that Respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name). The Panel finds that Policy 4(a)(ii) had been satisfied. Registration and Use in Bad Faith Respondent’s use of the <parknflyfree.com> and <parkandflyfree.com> domain names as connections to its competing parking service website is evidence of bad faith. See Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and used in bad faith where Respondent and Complainant were in the same line of business in the same market area); see also Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business). Respondent’s passive holding of the <parknfly.com> domain name identical to Complainant’s service mark is evidence of bad faith. See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); see also Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the Respondent had made no use of the domain name or website that connects with the domain name, and passive holding of a domain name permits an inference of registration and use in bad faith). The Panel finds that policy 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN policy, the Panel concludes that the requested relief shall be hereby granted. Accordingly, it is Ordered that the domain names <parknfly.com>, <parknflyfree.com>, and <parkandflyfree.com> be transferred from Respondent to Complainant. James A. Carmody, Esq., Panelist Dated: October 29, 2001 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.