Gmacfinancialservices.com

The timeline behind gmacfinancialservices.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 GMAC LLC v. WhoisGuard Protected Claim Number: FA0703000942715 PARTIES Complainant is GMAC LLC (“Complainant”), represented by Linda E. Sudzina, of Rader, Fishman & Grauer PLLC, 39533 Woodward Avenue, Bloomfield Hills, MI 48304. Respondent is WhoisGuard Protected (“Respondent”), Box 418 Nkwogwu, Lagos Imo State 90045, NG. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <gmacfinancialservices.com>, registered with Enom, Inc. PANEL The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding. David E. Sorkin (chair), Hon. Carolyn M. Johnson, and Anne M. Wallace, Q.C., as Panelists. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 19, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 20, 2007. On March 20, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <gmacfinancialservices.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 March 28, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 17, 2007 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@gmacfinancialservices.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On April 27, 2007, pursuant to Complainant’s request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed David E. Sorkin (chair), Hon. Carolyn M. Johnson, and Anne M. Wallace, Q.C., as Panelists. 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. The Panel notes that the Whois database maintained by the registrar, Enom, Inc., currently identifies the registrant of the disputed domain name as Chen Bao Shui, 1187 Nanmatou Rd, Building 28 Room 601, Shanghai 200126, China, rather than Respondent. It is not clear to the Panel whether this change in the Whois database since the Complaint was filed represents an attempted transfer of the domain name to a different registrant, or merely a correction of the previous entry that identified the registrant as “WhoisGuard Protected.” (It appears to the Panel that “WhoisGuard Protected” was merely a pseudonym created by the domain name registrant rather than a reference to a registrar’s proxy registration service). In any event, Paragraph 8(a) of the Policy prohibits the transfer of a domain name registration during the pendency of an administrative proceeding, and the Panel therefore retains jurisdiction over this matter notwithstanding the alteration of the domain registration record. 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 <gmacfinancialservices.com> domain name is identical or confusingly similar to Complainant’s GMAC and GMAC FINANCIAL SERVICES marks. 2. Respondent does not have any rights or legitimate interests in the <gmacfinancialservices.com> domain name. 3. Respondent registered and used the <gmacfinancialservices.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS The Panel finds that the disputed domain name <gmacfinancialservices.com> is identical or confusingly similar to a mark in which Complainant has rights, that Respondent lacks rights or legitimate interests in respect of the disputed domain name, and that Respondent registered and has used the disputed domain name in bad faith. 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”). 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 or Confusingly Similar Complainant asserts, inter alia, that the service marks GMAC and GMAC FINANCIAL SERVICES are owned by General Motors Corporation, and that Complainant is the exclusive licensee of these marks. Complainant further asserts that the disputed domain name <gmacfinancialservices.com> is identical to the GMAC FINANCIAL SERVICES mark and confusingly similar to the GMAC mark. Having considered the evidence before it, the Panel accepts these allegations as true, and finds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights. Rights or Legitimate Interests Paragraph 4(c) of the Policy lists three circumstances in particular, without limitation, that demonstrate rights or legitimate interests of a domain name registrant to a domain name, for the purposes of paragraph 4(a)(ii) of the Policy: (1) before any notice of the dispute, the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services; or (2) the Respondent, as an individual, business, or other organization, has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or (3) the Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Complainant asserts that Respondent lacks rights or legitimate interests in respect of the disputed domain name, on the grounds that Respondent has never used the domain name in connection with a bona fide offering of goods or services, that Respondent is not now and never has been commonly known by the domain name, and that Respondent is not making a legitimate noncommercial or fair use of the domain name. Complainant alleges that Respondent is using the disputed domain name in an infringing manner to generate advertising revenue through links to competing services. Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in respect of the disputed domain name, and the burden therefore shifts to Respondent to rebut this showing with evidence of its rights or legitimate interests. See, e.g., Am. Online, Inc. v. Thricovil, FA 638077 (Nat. Arb. Forum Mar. 22, 2006). Respondent has not done so, and under the circumstances the Panel concludes that Complainant has met its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name. Registration and Use in Bad Faith Complainant alleges that Respondent registered and has used the disputed domain name in bad faith. Under Paragraph 4(b) of the Policy, evidence that a domain name registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website by creating a likelihood of confusion with the complainant’s mark serves as evidence of bad faith. Complainant contends, inter alia, that Respondent must have had actual knowledge of Complainant’s trademark rights when it registered the domain name, and that Respondent registered and has used the domain name in connection with a website in order to profit from the fame and goodwill of Complainant’s marks by linking to competing companies in the financial services field. Having considered the evidence before it, the Panel accepts Complainant’s allegations as true, and concludes that Complainant has met its burden of proving that Respondent registered and has used the disputed domain name in bad faith. 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 <gmacfinancialservices.com> domain name be TRANSFERRED from Respondent to Complainant. David E. Sorkin, Panel Chair Dated: May 9, 2007 Click Here to return to the main Domain Decisions Page. 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Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.