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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Carfax, Inc. D/B/A Carfax v. wwwcarfax.com
Case No. D2001-0913
1. The Parties
Complainant is Carfax, Inc., d/b/a Carfax, a Pennsylvania corporation, c/o Mary Beiro, 10304 Eaton Place, Fairfax, Virginia 22030, United States of America. Complainant is represented in this administrative proceeding by Anamaria E. Cashman and Kyle G. French of Seyfarth Shaw, 55 East Monroe Street, Suite 4200, Chicago, Illinois 60603, United States of America.
Respondent is wwwcarfax.com, Postal Box 15, Moudania, Greece 63200, Greece.
2. The Domain Name and Registrar
The Domain Name the subject of this Complaint is <wwwcarfax.com>.
The Registrar of the Domain Name is Tucows, Inc., 96 Mowat Avenue, Toronto, Ontario, M6K 3M1, Canada.
3. Procedural History
3.1. The Complaint in respect of the disputed Domain Name was received by the World Intellectual Property Organization Arbitration and Mediation Center (WIPO Center) by email on July 17, 2001, and in hard copy on July 18, 2001. Complainant states that a copy of the Complaint was sent or transmitted to the Respondent on July 13, 2001, by: (1) first-class mail to the postal address listed in the domain name registration data for the Domain Name holder, technical contact and administrative contact; and (2) without enclosures by e-mail to the address listed in the domain name registration data for the Domain Name holder, technical contact and administrative contact. A copy of this Complaint has been sent or transmitted to the Registrar, Tucows Inc., on July 13, 2001, by first class U.S. mail and facsimile.
3.2. On July 26, 2001, verification was received from the Registrar, Tucows Inc., that the disputed Domain Name <wwwcarfax.com> is registered in the name and address of wwwcarfax.com, ##Domain name available for lease or sale.##, Postal Box 15, Moudania, Greece 63200, Greece. The same address was given for the Administrative Contact, Technical Contact and Billing Contact. The UDRP applies as per section 7 of the Registration Agreement.
3.3. The Complaint satisfies the formal requirements of the Uniform Domain Name Dispute Resolution Policy (Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (Rules) and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules) all as approved by the Internet Corporation for Assigned Names and Numbers (ICANN).
3.4. On July 30, 2001, Formal Notification of Complaint and Commencement of Administrative Proceeding (with enclosures) was sent by WIPO Center by post/courier to the registered address of Respondent. Email copies without enclosures were sent to Respondent, copied to Complainant, ICANN and Tucows, Inc.
3.5. No Response was received from Respondent by the due date of August 19, 2001, and a Notification of Respondent Default was sent to the Parties on August 20, 2001.
3.6. On August 29, 2001, Dr. Clive Trotman, having provided the WIPO Center with a Statement of Acceptance and Declaration of Impartiality, was appointed as a single member Administrative Panel and notification was sent by email to Complainant, Respondent and the Administrative Panel. An electronic copy of the Complaint and Response was sent by email to the Administrative Panel on September 4, 2001, and the hardcopy of the Case File was sent by courier.
4. Factual Background
4.1. Complainant for the past seventeen years has provided vehicle information to automobile buyers and sellers, including information on an automobile’s past history.
4.2. Complainant is the owner of U.S. Registration No. 1,589,438 for CARFAX, and approved trademark application U.S. Serial No. 75/758,044 for CARFAX.COM. Complainant has used its CARFAX mark since at least as early as October 10, 1984, and the CARFAX.COM mark since at least as early as July 1, 1997. The CARFAX and CARFAX.COM marks and the goodwill associated with them are valuable.
4.3. Complainant uses its marks in connection with offering its services over the Internet and directly to automobile dealers and consumers, in connection with which activities it operates the website <www.carfax.com>.
4.4. Respondent has a website at the Internet address <www.wwwcarfax.com> that is effectively blank.
5. Parties’ Contentions
A. Contentions of Complainant
5.1. The contentions of Complainant include (paragraphs 5.2 to 5.8 below) that:
5.2. The dispute is properly within the scope of the Policy. The registration agreement, pursuant to which the Domain Name being the subject of this Complaint was registered, incorporates the Policy by reference.
5.3. The disputed Domain Name is confusingly similar to trademarks in which Complainant has rights, differing essentially by the addition of the prefix letters "www" (without a period punctuation mark following).
5.4. Respondent has no rights or legitimate interest in the disputed Domain Name, which was registered on February 10, 2000. The disputed Domain Name leads to a blank screen page.
5.5. Respondent’s registration and use of the disputed Domain Name is in bad faith in totality and specifically in the terms of the Policy. Respondent is attempting to take advantage of Internet users who omit the period between "www" and the Complainant’s CARFAX.COM mark or in Complainant's <www.carfax.com> Domain Name address, thereby misleading users to Respondent's website by confusion.
5.6. The registration details of the disputed Domain Name indicate that it is available for lease or sale.
5.7. The best endeavors of Complainant to contact Respondent at its previously registered Cincinnati, Ohio address, and subsequent enquiries, revealed the address to be non-existent. Attempts to contact Respondent by email evidently were not undeliverable but were not replied to.
5.8. The remedy requested by Complainant is that the disputed Domain Name be transferred to Complainant.
B. Contentions of Respondent
5.9. No Response has been received from Respondent.
6. Discussion and Findings
Jurisdiction of Administrative Panel
6.1. Paragraph 4(a) of the Uniform Policy states:
"You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that:
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith."
6.2. Complainant has made the relevant assertions as in 6.1 above. This dispute is properly within the scope of the Domain Name Dispute Policy and the Administrative Panel has jurisdiction to decide the dispute.
Whether the Domain Name is Identical or Confusingly Similar to a Trademark
6.3. The Domain Name subject to this Complaint is <wwwcarfax.com>. The Domain Name incorporates Complainant's trademarks CARFAX and CARFAX.COM and differs from Complainant's Domain Name address <www.carfax.com> by the omission of a period punctuation mark. Ample precedent cases have held the addition of letters to a domain name, including specifically the addition of the prefix "www", to constitute confusing similarity with a trademark (InfoSpace.com, Inc. v. Registrar Administrator Lew Blanck, Case No. D2000-0069; Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; World Wrestling Federation Entertainment, Inc. v. Bessette, WIPO Case No. D2000-0256). The Administrative Panel finds the disputed Domain Name to be confusingly similar to the trademarks in which Complainant has rights in terms of Paragraph 4(a)(i) of the Uniform Policy.
Whether Respondent Has Rights or Legitimate Interests in Respect of the Domain Name
6.4. Complainant has produced evidence that the mark CARFAX was filed on November 5, 1987, and that the mark CARFAX.COM was filed on July 22, 1999. Complainant certifies that the marks have been used since at least as early as October 10, 1984, and at least as early as July 1, 1997, respectively. The disputed Domain Name appears to have been registered on February 10, 2000. Complainant asserts that Respondent has no rights or legitimate interests in the disputed Domain Name and has not been granted any rights by Complainant.
6.5. Respondent has not responded with any evidence of having used the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services in terms of Paragraph 4(c)(i) of the Policy.
6.6. There is no evidence that Respondent as an individual, business, or other organization has been commonly known by the Domain Name in terms of Paragraph 4(c)(ii) of the Policy.
6.7. Respondent does not claim to be making a legitimate noncommercial or fair use of the Domain Name in terms of Paragraph 4(c)(iii) of the Policy.
6.8. The Administrative Panel finds that Respondent has no rights or legitimate interests in the disputed Domain Name in terms of Paragraph 4(a)(ii) of the Policy.
Whether Domain Name Has Been Registered and Is Being Used in Bad Faith
6.9. Paragraph 4(a)(iii) of the Policy requires the Complainant to prove that the Domain Name has been registered and is being used in bad faith. Paragraph 4(b)(i) provides for a finding of bad faith in "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;". Having regard to all the circumstances including the confusing similarity with Complainant's trademark, the Respondent not having rights or legitimate interests in the Domain Name, and the inclusion of the line " ##Domain name available for lease or sale.## " in the registration documentation, there can be no plausible explanation alternative to the Domain Name having been registered for sale or transfer at a profit. The finding of the Administrative Panel is that the Domain Name has been registered and is being used in bad faith.
6.10. Paragraph 4(b)(iv) of the Policy provides for a finding of bad faith where "by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 website or location or of a product or service on your website or location". The Administrative Panel finds that the Respondent did use the Domain Name and did intend that Internet users who made the necessary typographical errors would be misled to the site for ultimate commercial gain. Bad faith is found in the terms of Paragraph 4(b)(iv).
6.11. Respondent's provision of a non-existent previous registration address and its failure to reply to hardcopy or email communications, compound its bad faith. The elements of bad faith listed in Paragraph 4(b) of the Policy are without limitation and the compounding factors, in conjunction with the findings above, lead the Administrative Panel to find bad faith separately on the totality of the evidence.
6.12. In summary, as concluded in 6.3 above the disputed Domain Name is confusingly similar to Complainant's trademarks and Complainant succeeds under Paragraph 4(a)(i) of the Policy. As concluded in 6.8 above, Respondent has no rights or legitimate interests in the Domain Name and Complainant succeeds under Paragraph 4(a)(ii) of the Policy. As concluded in alternatively 6.9, 6.10 and 6.11 above, Respondent has registered and used the Domain Name in bad faith and Complainant succeeds under Paragraph 4(a)(iii) of the Policy. The Complainant has proven all three points required by Paragraph 4(a) of the Uniform Policy and the Administrative Panel gives its Decision for the Complainant and against the Respondent.
The Decision of the Administrative Panel is that the disputed Domain Name <wwwcarfax.com> is confusingly similar to the trademarks CARFAX and CARFAX.COM in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed Domain Name; and that Respondent has registered and is using the disputed Domain Name in bad faith. The Domain Name <wwwcarfax.com> shall be transferred to the Complainant.
Dr. Clive N. A. Trotman
Dated: September 11, 2001