Dollar Rent a car, Inc V. Namescope Limited / Domain Hostmaster, Customer id: 08460564467531 / Whois Privacy Services Pty Ltd




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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Dollar Rent A Car, Inc. v. Namescope Limited / Domain Hostmaster, Customer ID: 08460564467531 / Whois Privacy Services Pty Ltd

Case No. D2015-1275



1. The Parties

The Complainant is Dollar Rent A Car, Inc. of Tulsa, Oklahoma, United States of America (“US”), represented by Ladas & Parry, US.


The Respondent is Namescope Limited of / Domain Hostmaster, Customer ID: 08460564467531 of Saint Kitts and Nevis; Whois Privacy Services Pty Ltd of Fortitude Valley, Queensland, Australia.


2. The Domain Name and Registrar

The disputed domain name is registered with Fabulous.com (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2015. On July 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 24, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 27, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on August 3, 2015.


The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on August 6, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26, 2015. On August 14, 2015, the Respondent sent an email to the Center indicating that it was willing to transfer the disputed domain name to the Complainant. On September 4, 2015, the Center notified the parties the suspension of the proceeding and on September 21, 2015, the Center notified the parties of the reinstitution of the proceeding upon the Complainant’s request.
The Respondent did not submit any formal response except for the emails dated August 14, 2015 and September 4, 2015. Accordingly, the Center notified the Respondent of the proceeding to panel appointment on September 22, 2015.
The Center appointed Benoit Van Asbroeck as the sole panelist in this matter on October 2, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.


4. Factual Background

The Complainant is a US company, registered under the laws of the State of Oklahoma. Its business operations consist of superior vehicle rental services with suburban and on-airport locations but also worldwide rental car operations. Its operations are complemented by business travel and vacation planning services.


The Complainant has suburban and airport locations in all major cities throughout the US and boasts 570 worldwide rental car locations in 61 countries, including Canada, the United Kingdom of Great Britain and Northern Ireland, Germany, Austria, Ireland and Australia.
The Complainant submitted evidence that it holds national trademark rights for DOLLAR RENT A CAR and DOLLAR in the US, Australia and China.
Through the DOLLAR RENT A CAR and DOLLAR trademarks the Complainant has exclusive rights on those marks in connection with automobile, truck and recreational vehicle renting and leasing, parking lot services, computerized online vehicle renting and leasing, retail and wholesale, used automobile sales outlet services, and transportation by limousine and bus.


The Respondent registered the disputed domain name on July 31, 2005.



5. Parties’ Contentions

A. Complainant

The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are satisfied in the present case, as follows:



(a) The disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant contends that the disputed domain name is confusingly similar to the registered rights in which the Complainant has rights. The disputed domain name incorporates in its entirety the Complainant’s marks DOLLAR RENT A CAR and DOLLAR (the “Trademarks”).
The Complainant further submits that the addition of a generic Top Level Domain (gTLD) “.com” in the disputed domain name serves no purpose in distinguishing the disputed domain name and therefore does not affect the domain name for the purpose of determining if the disputed domain name is confusingly similar.
In relation to the Complainant’s mark DOLLAR RENT A CAR, the Complainant argues that even when the disputed domain name which consists solely of a trademark but deletes the spaces or letters or misspells it, the disputed domain name remains confusingly similar to the Complainant’s DOLLAR RENT A CAR mark.
In relation to the Complainant’s DOLLAR mark, the Complainant argues that incorporating the entirety of such mark in the disputed domain name, combined with the misspelling of the term “rent a car”, strengthens the association between the disputed domain name and the Complainant’s mark, and therefore the disputed domain name is also confusingly similar to the Complainant’s DOLLAR trademark.
(b) The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant asserts that there is no evidence of the Respondent using the disputed domain name in connection with a bona fide offering of goods or services nor that the Respondent has been commonly known by the disputed domain name. The website corresponding to the disputed domain name resolves to a web page with links to the Complainant’s own website and to those of the Complainant’s competitors.
Accordingly the Complainant contends that it made a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name in order to place the burden of rebuttal on the Respondent.
The Complainant finally submits, on the basis of findings of other UDRP panels, that a domain name which is just used for a web page containing sponsored links does not constitute a legitimate interest.
(c) The disputed domain name was registered and is being used in bad faith.
The Complainant submits that the disputed domain name was registered and used in bad faith by the Respondent.
First, the Complainant argues that the Respondent intentionally used the disputed domain name to divert legitimate Internet traffic for the Complainant to the Respondent’s advertisement and sponsored links.
Secondly, the Complainant contends that the Respondent’s bad faith is demonstrated by the Respondent’s knowing and deliberate use of the disputed domain name consisting entirely of a one-letter misspelling of the Complainant’s DOLLAR RENT A CAR trademark.
Thirdly, the Complainant asserts that the Respondent’s failure to respond or to take action after being notified by a demand letter dated December 8, 2014 via email, with in copy the Registrar, and via post and by second demand letter in Chinese dated February 10, 2015, further evidences the Respondent’s bad faith.

B. Respondent

The Respondent did not formally reply to the Complainant’s contentions.




6. Discussion and Findings




A. Identical or Confusingly Similar

The Complainant is required to establish the two following elements: (1) that it has trademark rights, and, if so, (2) that the disputed domain name is identical or confusingly similar to its trademark(s).


First of all, this Panel finds that the Complainant has clearly evidenced that it has registered trademark rights to DOLLAR RENT A CAR and DOLLAR.

Secondly, the disputed domain name fully incorporates the Complainant’s DOLLAR RENT A CAR and DOLLAR Trademarks in which the Complainant has exclusive rights. Therefore this Panel finds, similarly to other UDRP panels, that it is established that where the disputed domain name wholly incorporates a complainant’s registered trademark, it is sufficient to establish identity or confusing similarity for purposes of the Policy. (EAuto, L.L.C. v. EAuto Parts, WIPO Case No. D2000-0096; Komatsu Ltd. and Komatsu America International Company v. RKWeb Ltd., WIPO Case No. D2000-0995).


A domain name which contains a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.10, and the relevant decisions cited therein). Accordingly, regarding the Complainant’s trademark DOLLAR RENT A CAR, this Panel finds that the disputed domain name which contains an obvious misspelling of the Complainant’s DOLLAR RENT A CAR trademark is confusingly similar to such trademark.
This Panel further finds, similarly to other UDRP panels, that it is established that where the disputed domain name incorporates a complainant’s registered trademark, as the dominant element, which in this case is DOLLAR, this may be sufficient to establish that the domain name is identical or confusingly similar for the purposes of the Policy (Ross-Simons, Inc. v. Domain.Contact, WIPO Case No. D2003-0994; Aktiebolaget Electrolux v. Diana Virginina Rodríguez Cazorla, Govone Develops, S.L., WIPO Case No. D2014-0940; Nokia Corporation v. Jameela Seif, WIPO Case No. D2009-1665; Société Nationale des Chemins de Fer Français SNCF contre. Assane Amadou, WIPO Case No. D2012-0714). Therefore the addition of descriptive wording to a trademark, in this case the misspelled phrase “rent a car”, is insufficient in itself to avoid finding of a confusing similarity.
Fourthly, this Panel finds, similarly to other UDRP panels, that the addition of the gTLD “.com” to the disputed domain name does not constitute an element so as to avoid confusing similarity for purposes of the Policy.
On the basis of the foregoing findings, and according to paragraph 4(a)(i) of the Policy, this Panel finds and concludes that the disputed domain name is confusingly similar to the Complainant’s DOLLAR RENT A CAR and DOLLAR Trademarks.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy lists circumstances, in particular but without limitation, which, if found by the Panel to be proved, demonstrate the Respondent’s rights or legitimate interests in the disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy. Paragraph 4(c) of the Policy reads:

“When you receive a complaint, you should refer to paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):

(i) before any notice to you of the dispute, your 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 or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial 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.”


This Panel finds in light of the Complainant’s asserted facts, that no license, permission or authorization of any kind to use the Complainant’s trademark has been granted to the Respondent. Thus, the Respondent has no rights in the trademarks DOLLAR RENT A CAR" and DOLLAR.
An examination of the website operating under the disputed domain name shows no evidence that the Respondent has used, or undertaken any demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods and services since the website corresponding the disputed domain name offers links to the Complainant’s own website and those of the Complainant’s competitors, as well as sponsored links.
Moreover, this Panel finds that there is no evidence that would suggest that the Respondent, as an individual, business, or other organization, has been commonly known by the disputed domain name.
This Panel further finds that no evidence has been presented that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The website corresponding to the disputed domain name only provides for links to the Complainant’s website and the Complainant’s competitors. This Panel has considered the Complainant’s assertions and evidence with regard to the Respondent’s registration and use of the disputed domain name. In particular, this Panel has considered the Complainant’s evidence of the website corresponding to the disputed domain name and finds that it resolves to a web page with a pay-per-click directory and sponsored links. Accordingly, this Panel finds that the Respondent had or should have had full knowledge of the Trademarks and that its only intention was to mislead Internet users to one or more other commercial site and thus generate traffic and income by free-riding on the good reputation of the Complainant and its Trademarks.
For all the foregoing reasons, this Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy identifies, in particular but without limitation, four circumstances which, if found by this Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(b) of the Policy reads:


“For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

Each of the four circumstances in paragraph 4(b) of the Policy, if found, would an instance of “registration and use of a domain name in bad faith.”


First of all, with regard to the Respondent’s registration of the disputed domain name, this Panel believes, after reviewing the website as evidenced by the Complainant that the Respondent must have known and been aware of the rights on the prior DOLLAR RENT A CAR and DOLLAR Trademarks, since the Respondent registered the disputed domain name well after the registration of the Complainant’s trademark and further correctly listed on the web page corresponding the disputed domain name, the competing services of the Complainant.
Secondly, this Panel has also considered that the Respondent uses the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s Trademark. This Panel asserts, similarly to other UDRP panels, that the use of misspellings alone is sufficient to prove bad faith under paragraph 4(b)(iv) (AltaVista Company v. Saeid Yomtobian WIPO Case No. D2000-0937; Arthur Guinness Son & Co. (Dublin) Ltd. v. Dejan Macesic, WIPO Case No. D2000-1698). Such behavior is indicative of bad faith within the meaning of paragraph 4(b)(i) and 4(b)(ii) of the Policy, on the part of the Respondent.

In light of the foregoing, this Panel finds that the disputed domain name was registered and used by the Respondent in bad faith under the Policy




7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.



Benoit Van Asbroeck

Sole Panelist



Date: October 16, 2015



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