Daimlerchyrsler.com

The timeline behind daimlerchyrsler.com

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

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

NATIONAL ARBITRATION FORUM DECISION DaimlerChrysler AG v. Ling Shun Shing Claim Number: FA0502000417238 PARTIES Complainant is DaimlerChrysler AG (“Complainant”), represented by Jan Zecher, of Gleiss Lutz Rechtsanwaelte, Maybachstr. 6, 70469, Stuttgart, Germany. Respondent is Ling Shun Shing (“Respondent”),138 Yi Xue Yuan Road, 200032 Shanghai, P.R. China. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <daimlerchyrsler.com>, registered with Nameking.com, Inc. 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. The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2005; the National Arbitration Forum received a hard copy of the Complaint on February 14, 2005. On February 9, 2005, Nameking.com, Inc. confirmed by e-mail to the National Arbitration Forum that the domain name <daimlerchyrsler.com> is registered with Nameking.com, Inc. and that Respondent is the current registrant of the name. Nameking.com, Inc. has verified that Respondent is bound by the Nameking.com, Inc. 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 February 17, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 9, 2005 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@daimlerchyrsler.com by e-mail. Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On March 17, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions: 1. Respondent’s <daimlerchyrsler.com> domain name is confusingly similar to Complainant’s DAIMLERCHRYSLER mark. 2. Respondent does not have any rights or legitimate interests in the <daimlerchyrsler.com> domain name. 3. Respondent registered and used the <daimlerchyrsler.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, DaimlerChrysler AG, is a world famous car manufacturer, retailer, and automotive service provider. In the last ten years, Complainant and its legal predecessors have sold annually over 1,000,000 automotive vehicles worldwide. Complainant owns 100% of the shares of its subsidiary DaimlerChrysler China Ltd., incorporated on January 18, 2001. Complainant’s subsidiary sells and promotes Complainant’s cars throughout China, which is Respondent’s purported country of residence. Complainant holds a registration for the DAIMLERCHRYSLER mark with the Deutsches Patent und Markenamt (Reg. No. 39,825,488 with priority of May 7, 1998). In addition, Complainant holds a registration for the DAIMLERCHRYSLER international trademark with the World Intellectual Property Organization (No. 707,283 with priority of July 2, 1998), used for automotive vehicles and claiming protection for, inter alia, Austria, Benelux, China, Denmark, France, Great Britain, Italy, Norway, Poland, Portugal, Romania, Russia, Sweden, Switzerland, and Spain. Complainant has used the element “Daimler” for automotive vehicles in its business and its legal predecessors since 1886 and the element “Chrysler” since 1924. Respondent registered the <daimlerchyrsler.com> domain name on September 19, 2002. Respondent is using the disputed domain name to redirect Internet users to a website entitled, “What you need, when you need it.” In addition, the website provides various links for vehicles and automotive-related resources that are in competition with Complainant’s goods and services. Respondent presumably commercially benefits by receiving pay-per-click fees from advertisers when Internet users follow the links on the website located at the disputed domain name. 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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. 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. Identical and/or Confusingly Similar Complainant has provided extrinsic evidence that it holds trademark registrations for the DAIMLERCHRYSLER mark with the Deutsches Patent und Markenamt and the World Intellectual Property Organization, respectively. In addition, Complainant established that it has rights in the terms “Daimler” and “Chrysler” through continued use of them in commerce over the last one hundred nineteen and eighty-one years, respectively. See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption.); see also Smart Design LLC v. Hughes, D2000-0993 (WIPO Oct. 18, 2000) (holding that ICANN Policy ¶ 4(a)(i) does not require complainant to demonstrate ‘exclusive rights,’ but only that complainant has a bona fide basis for making the Complaint in the first place). Respondent’s <daimlerchyrsler.com> domain name is confusingly similar to Complainant’s DAIMLERCHRYSLER mark because the domain name incorporates the mark and simply transposes the “r” and “y” and merely adds the generic top-level domain (“gTLD”) “.com.” The transposition of two letters and the addition of a gTLD does not distinguish Respondent’s domain name from Complainant’s marks. Thus, the Panel concludes that Respondent’s minor alterations to Complainant’s marks is not sufficient to differentiate Respondent’s domain name from Complainant’s marks pursuant to Policy ¶ 4(a)(i). See Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1146 (9th Cir. 2002) (“Internet users searching for a company’s Web site often assume, as a rule of thumb, that the domain name of a particular company will be the company name or trademark followed by ‘.com.’”); see also Elder Mfg. Co., Inc. v. Recker, FA 98414 (Nat. Arb. Forum Sept. 10, 2001) (“In the matter at bar it is beyond refute that Respondent’s domain names are virtually identical, and thus confusingly similar to Elder’s trademarks. Any superficial differences between the domain names and the Elder trademarks are de minimis and of no legal consequence”); see also VeriSign, Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that the pronunciation and spelling between the domain name <venesign.com> and Complainant’s mark, VERISIGN, are so close that confusion can arise in the mind of the consumer); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”). The Panel finds that Complainant satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Respondent failed to contest Complainant’s assertion that Respondent lacks rights and legitimate interests in the disputed domain name. Because Complainant’s evidence and arguments are unopposed, the Panel is permitted to accept all reasonable inferences made in the Complaint as true. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”); see also Bayerische Motoren Werke AG v. Bavarian AG, FA 110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a Response the Panel is free to make inferences from the very failure to respond and assign greater weight to certain circumstances than it might otherwise do); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that complainant’s allegations are true unless clearly contradicted by the evidence). Additionally, Complainant has submitted a prima facie case to the Panel that Respondent lacks rights and legitimate interests in the domain name, thereby shifting the burden to Respondent. Respondent’s failure to fulfill its burden means that Respondent has failed to invoke any circumstances that could demonstrate rights or legitimate interests in the domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once complainant asserts that respondent has no rights or legitimate interests with respect to the domain, the burden shifts to respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that respondent has no rights or legitimate interests in the domain name because respondent never submitted a response or provided the Panel with evidence to suggest otherwise). Respondent is not authorized or licensed by Complainant to use the DAIMLERCHRYSLER mark in the domain name. Moreover, no evidence before the Panel suggests that Respondent is commonly known by the domain name pursuant to Policy ¶ 4(c)(ii). Therefore, Respondent has no rights or legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests where respondent was not commonly known by the mark and never applied for a license or permission from complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) respondent is not a licensee of complainant; (2) complainant’s rights in the mark precede respondent’s registration; (3) respondent is not commonly known by the domain name in question). Respondent’s use of the infringing domain name to offer and advertise vehicles and automotive-related resources, which are similar to goods and services that Complainant offers, is not a 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). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that respondent’s diversionary use of complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to competitors of complainant, was not a bona fide offering of goods or services); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that respondent’s appropriation of complainant’s mark to market products that compete with complainant’s goods does not constitute a bona fide offering of goods and services). The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Respondent’s registration of the disputed domain name, a domain name that incorporates Complainant’s mark and deviates only with the transposition of two letters and the addition of a gTLD, suggests that Respondent knew of Complainant’s rights in the DAIMLERCHRYSLER mark. Moreover, the Panel infers that Respondent had actual knowledge of Complainant’s rights in the mark due to the obvious connection between the content advertised on Respondent’s website and Complainant’s business. Thus, the Panel concludes that Respondent chose the <daimlerchyrsler.com> domain name based on its knowledge of Complainant’s mark, and thus registered and used the domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. 2002) ("Where an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse"); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Pfizer, Inc. v. Papol Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between complainant’s mark and the content advertised on respondent’s website was obvious, respondent “must have known about the complainant’s mark when it registered the subject domain name”). Respondent is using the <daimlerchyrsler.com> domain name to advertise and offer vehicles and automotive-related resources. Complainant’s business manufactures and sells automobiles and offers automotive-related products and services. The Panel finds that, by creating confusion around Complainant’s DAIMLERCHRYSLER mark, Respondent is attempting to disrupt the business of a competitor. Respondent’s use of a domain name that is confusingly similar to Complainant’s mark to sell goods and services similar to those offered by Complainant is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. 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); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from complainant's marks suggests that respondent, complainant’s competitor, registered the names primarily for the purpose of disrupting complainant's business). Respondent registered and used the <daimlerchyrsler.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). Specifically, uncontested evidence indicates that the subject domain name earns referral fee revenue for Respondent through click-through advertising. Thus, the Panel infers that Respondent commercially benefits from its use of Complainant’s DAIMLERCHRYSLER mark in the domain name. See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if respondent profits from its diversionary use of complainant's mark when the domain name resolves to commercial websites and respondent fails to contest the Complaint, it may be concluded that respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where respondent directed Internet users seeking complainant’s site to its own website for commercial gain); see also H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using complainant’s famous marks and likeness). The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii). 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 <daimlerchyrsler.com> domain name be TRANSFERRED from Respondent to Complainant. The Honorable Charles K. McCotter, Jr. (Ret.), Panelist Dated: March 31, 2005 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

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