Nationalrentacarservices.com

The timeline behind nationalrentacarservices.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 Vanguard Tradmark Holdings USA LLC v. Onur Gunal Claim Number: FA0902001249124 PARTIES Complainant is Vanguard Trademark Holdings USA LLC (“Complainant”), represented by Ryan C. Compton, of DLA Piper LLP (US), Washington, D.C., USA. Respondent is Onur Gunal (“Respondent”), Turkey. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <nationalrentacarservices.com>, registered with Ihs Telekom, Inc. PANEL The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding. Tyrus R. Atkinson, Jr., as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 24, 2009; the National Arbitration Forum received a hard copy of the Complaint on February 24, 2009. On March 2, 2009, Ihs Telekom, Inc. confirmed by e-mail to the National Arbitration Forum that the <nationalrentacarservices.com> domain name is registered with Ihs Telekom, Inc. and that Respondent is the current registrant of the name. Ihs Telekom, Inc. has verified that Respondent is bound by the Ihs Telekom, 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 6, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 2009 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@nationalrentacarservices.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 3, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <nationalrentacarservices.com> domain name is confusingly similar to Complainant’s NATIONAL mark. 2. Respondent does not have any rights or legitimate interests in the <nationalrentacarservices.com> domain name. 3. Respondent registered and used the <nationalrentacarservices.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Vanguard Tradmark Holdings USA LLC, has provided high-quality vehicle rental and leasing services throughout the world since 1949. Complainant has registered its NATIONAL mark with the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 1,537,711 issued May 2, 1989) and the Turkish trademark authority (Reg. No. 170,039 issued September 27, 1995). Respondent registered the <nationalrentacarservices.com> domain name on April 19, 2007. The disputed domain name does not resolve to an active website, but previously resolved to the website of one of Complainant’s competitors. Respondent also offered to transfer the disputed domain name to Complainant for $1,000. 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 The Panel finds that Complainant’s registrations of the NATIONAL mark with various governmental trademark authorities, such as the USPTO and the Turkish trademark authority, confer sufficient rights in the mark upon Complainant pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”). Respondent’s <nationalrentacarservices.com> domain name contains Complainant’s NATIONAL mark while including the descriptive phrase “rent a car services” and the generic top-level domain “.com.” The Panel finds that the mark is clearly the dominant element in the disputed domain name and that the added words describe Complainant’s business; thus the additions are not sufficient to render the disputed domain name adequately dissimilar to the mark. Therefore, the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). Complainant argues that Respondent is not licensed to use Complainant’s mark, and that Respondent is not commonly known by the disputed domain name. The Panel notes that the WHOIS information lists Respondent as “Onur Gunal.” Therefore, the Panel finds that Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). Respondent’s disputed domain name previously resolved to a website of Complainant’s competitor. The Panel infers that Respondent received some form of referral fee for this diversion, and that therefore Respondent failed to create 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 Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Currently, the disputed domain name does not resolve to an active website. The Panel finds that, absent any demonstrable preparations to use the disputed domain name 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) in the record, Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) through this failure to use the disputed domain name. See TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [failure to make an active use] of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”); see also Am. Online, Inc. v. Kloszewski, FA 204148 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent's [failure to make an active use] of the <aolfact.com> domain name for over six months is evidence that Respondent lacks rights and legitimate interests in the domain name.”). Moreover, Respondent’s offer to sell the disputed domain name to Complainant for $1,000, which is more than the registration costs, evidences a further lack of rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“An attempt by a respondent to sell a domain name to a complainant who owns a trademark with which the domain name is confusingly similar for an amount in excess of out-of-pocket costs has been held to demonstrate a lack of legitimate rights or interests.”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent offered to sell the disputed domain name to Complainant for $1,000. The Panel finds that Respondent primarily intended such sale to Complainant upon registration given the confusing similarity of the disputed domain name and the meager use of the domain name. Therefore, the Panel finds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(i). See Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Nat. Arb. Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name for $2,000 sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(i)); see also Banca Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where the respondent offered the domain names for sale). Moreover, the previous use of the disputed domain name to divert Internet users to a competitor of Complainant clearly disrupted Complainant’s business. The Panel finds that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant . . .”); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”). The Panel finds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iv) by intentionally creating a likelihood of confusion for commercial gain as to Complainant’s affiliation with Respondent’s confusingly similar disputed domain name and the resolving website pertaining to Complainant’s competitor. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). The Panel further finds that Respondent’s current non-use of the disputed domain name evidences Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”); 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). 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 <nationalrentacarservices.com> domain name be TRANSFERRED from Respondent to Complainant. Tyrus R. Atkinson, Jr., Panelist Dated: April 17, 2009 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.