Careylimousine.com

The timeline behind careylimousine.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 Carey International, Inc. v. Traverito Traverito Claim Number: FA0705000994123 PARTIES Complainant is Carey International, Inc. (“Complainant”), represented by Sara L. Edelman, of Davis & Gilbert LLP, 1740 Broadway, New York, NY 10019. Respondent is Traverito Traverito (“Respondent”), Crcega 329 4 Planta, Barcelona, AL ES 08037. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <careylimousine.com>, registered with Moniker Online Services, 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 May 30, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 31, 2007. On June 4, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <careylimousine.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 June 7, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 27, 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@careylimousine.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On July 2, 2007, 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 <careylimousine.com> domain name is confusingly similar to Complainant’s CAREY mark. 2. Respondent does not have any rights or legitimate interests in the <careylimousine.com> domain name. 3. Respondent registered and used the <careylimousine.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Carey International, Inc., holds several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CAREY mark (e.g., Reg. No. 1,107,533 issued November 28, 1978 and Reg. No. 1,375,117 issued December 10, 1985). Complainant also holds trademark registrations for the CAREY mark in over 25 other countries. Complainant has used the CAREY mark in connection with the sale of its limousine transportation services since 1921. Complainant offers chauffeur-driven transportation services in over 75 countries and at least 460 cities worldwide, all under the CAREY mark. Complainant has registered the <careylimousines.com> domain name which it uses in connection with the international sale of its limousine services. Respondent registered the <careylimousine.com> domain name on June 25, 1998. Respondent is using the disputed domain name as a portal website to redirect Internet users to Respondent’s website displaying links to third-party websites, some of which directly compete with Complainant’s services under the CAREY mark. Respondent receives click-through fees for each link clicked on and Respondent also receives commissions on any product sold. 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 and/or Confusingly Similar Complainant has established rights in the CAREY mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”). Respondent’s <careylimousine.com> domain name is confusingly similar to Complainant’s mark because it uses Complainant’s CAREY mark in its entirety and adds the descriptive word “limousine” and the generic top-level domain (“gTLD”) “.com” to the mark. Complainant contends that the word “limousine” describes their business, which focuses primarily on the sale of limousine services. Additionally, Complainant contends that the <careylimousine.com> domain name is also confusingly similar because it is nearly identical to Complainant’s own <careylimousines.com> domain name, merely omitting the “s” from the domain name. The Panel finds that Respondent’s use of a domain name that uses Complainant’s mark in its entirety and adds a word describing Complainant’s business does not negate the confusingly similar aspects of Respondent’s domain name from the mark pursuant to Policy ¶ 4(a)(i). See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business). Finally, the Panel finds that the addition of a gTLD does not sufficiently alter a mark to avoid a finding of confusing similarity under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant alleges that Respondent lacks rights or legitimate interests in the <careylimousine.com> domain name. In this case, Complainant’s assertion establishes a prima facie case, which shifts the burden to Respondent to prove that it has rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). The Panel assumes that Respondent does not have rights or legitimate interests here because Respondent did not respond to the Complaint. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”). However, the Panel will consider all available evidence before determining whether Respondent has rights or legitimate interests in the <careylimousine.com> domain name under Policy ¶ 4(c). Complainant contends that Respondent is using the <careylimousine.com> domain name as a portal website to display links to competing third-party websites. The Panel finds that Respondent’s use of the website to display links to websites in direct competition with Complainant to earn click-through fees and commissions is not a use in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use). Additionally, Respondent offers no evidence and there is no evidence present in the record to indicate that Respondent is commonly known by the <careylimousine.com> domain name. Respondent’s WHOIS information identifies Respondent as “Traverito Traverito.” Therefore, the Panel finds from the evidence available that Respondent is not commonly known by the <careylimousine.com> domain name under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent has registered and is using the <careylimousine.com> domain name to redirect Internet users to Respondent’s portal website displaying links to third-party websites offering services in direct competition with Complainant’s services under the CAREY mark. The Panel finds that such use by Respondent constitutes disruption of Complainant’s business, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)). Respondent is using the <careylimousine.com> domain name to redirect Internet users to Respondent’s portal website displaying links to websites offering services that compete with Complainant’s services under the CAREY mark for the assumed profit of Respondent. The Panel finds that because Respondent’s domain name is confusingly similar to Complainant’s mark, and even more confusing given its close similarity to Complainant’s <careylimousines.com> domain name, Internet users may become confused as to Complainant’s affiliation with the <careylimousine.com> domain name. Presumably, Respondent is profiting from this confusion through click-through fees and commissions off of any products sold through the disputed domain name. The Panel finds that such use constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). 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 relief shall be GRANTED. Accordingly, it is Ordered that the <careylimousine.com> domain name be TRANSFERRED from Respondent to Complainant. The Honorable Charles K. McCotter, Jr. (Ret.), Panelist Dated: July 16, 2007 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

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