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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Carfax, Inc. D/B/A Carfax v. Charlie Keller

Case No. D2001-0922

 

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 Charlie Keller, 1725 Esat [sic] State, Fort Wayne, Indiana 46805, United States of America.

 

2. The Domain Name and Registrar

The Domain Name the subject of this Complaint is <carfaxtoday.com>.

The Registrar of the Domain Name is: Network Solutions, Inc., (NSI), 505 Huntmar Drive, Herndon, Virginia 20170-5139, United States of America.

 

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 18, 2001 and in hard copy on July 20, 2001. Complainant states that a copy of the Complaint was sent or transmitted to the Respondent on July 17, 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, NSI, on July 17, 2001, by first class U.S. mail and facsimile.

3.2. On July 26, 2001, verification was received from the Registrar, NSI, that the disputed Domain Name <carfaxtoday.com> is registered in the name and address of Charlie Keller, 1725 Esat State, Fort wayne, Indiana 46805, United States. Surface communications to Charlie Keller have been addressed to 1725 East State, Fort Wayne, Indiana 46805, United States of America. The Administrative and Billing Contact is Lynn Rich, Expanets eSolutions Group, 421 East Cook Road, Suite 500, Fort Wayne, Indiana 46825, United States of America.

3.3. On July 31, 2001, WIPO Center determined (and the Administrative Panel has subsequently accepted) that 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 31, 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 NSI. On the same date a print was made of the screen page found in response to the disputed Domain Name.

3.5. No Response was received from Respondent by the due date of August 20, 2001, and a Notification of Respondent Default was sent to the Parties on August 22, 2001.

3.6. On September 4, 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 Case File 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, for which activities it operates the website www.carfax.com.

4.4. Respondent has a website at the Internet address www.carfaxtoday.com that contains advertising for and information related to automobile sales by "Dimension Ford-Lincoln-Mercury".

 

5. Parties’ Contentions

A. Contentions of Complainant

5.1. The contentions of Complainant include (paragraphs 5.2-5.7 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 word "today".

5.4. Respondent has no rights or legitimate interests in the disputed Domain Name, which was registered on January 25, 2000.

5.5. Respondent’s registration and use of the disputed Domain Name is in bad faith in the terms of the Policy. Respondent is using the Domain Name to exploit Complainant’s trademarks in the automobile industry for the purpose of attracting users to his automobile sales and information website.

5.6. Complainant has sent to Respondent two cease and desist letters with proof of delivery requesting that Respondent cease using Complainant’s trademarks and the disputed Domain Name. Respondent has not replied to Complainant’s cease and desist letters, which further indicates bad faith.

5.7. The remedy requested by Complainant is that the disputed Domain Name <carfaxtoday.com> be transferred to Complainant.

B. Contentions of Respondent

5.8. 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 Uniform Domain Name Dispute Resolution 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 disputed Domain Name subject to this Complaint is <carfaxtoday.com>. The disputed Domain Name incorporates Complainant's trademarks CARFAX or CARFAX.COM and differs from those trademarks and from Complainant's legitimate Domain Name address <www.carfax.com> by the insertion of the word "today" after the word CARFAX.

6.4. Confusing similarity has generally been found in precedent cases where a trademark or domain name has been adapted by the insertion of words or letters, including "today" (ESPN, Inc. v. Internet Bigbang Co., Ltd., National Arbitration Forum Case No. FA0097093); "i" (Telia AB v. Alex Ewaldsson and Birgitta Ewaldsson, WIPO Case No. D2000-0599); "my" (InfoSpace.com, Inc. v. Delighters, Inc. d/b/a Cyber Joe’s Internet Cafe, WIPO Case No. D2000-0068); "micro" (Infospace.com Inc. v. Infospace Technology Co. Ltd., WIPO Case No. D2000-0074); "india" (InfoSpace.com, Inc. v. Hari Prakash, WIPO Case No. D2000-0076); "www" (Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441); and a number of other generic words (Sony Kabushiki Kaisha v. Inja, Kil WIPO Case No. D2000-1409).

6.5. The Administrative Panel finds on the facts that the disputed Domain Name is identical or confusingly similar to trademarks in which Complainant has rights in terms of Paragraph 4(a)(i) of the Policy.

Whether Respondent Has Rights or Legitimate Interests in Respect of the Domain Name

6.6. 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 was registered on January 25, 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.

6.7. 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 the terms of Paragraph 4(c)(i) of the Policy. Whilst Respondent may be offering goods or services legitimately, and may be using the disputed Domain Name, the first does not legitimize the second if the Respondent had no right to adopt the disputed Domain Name.

6.8. Respondent has not responded with any evidence that as an individual, business, or other organization he has been commonly known by the Domain Name in terms of Paragraph 4(c)(ii) of the Policy.

6.9. On the evidence the disputed Domain Name is in commercial use and Respondent is not making a legitimate noncommercial or fair use of the Domain Name in terms of Paragraph 4(c)(iii) of the Policy.

6.10. 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

6.11. 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)(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".

6.12. On the evidence the Respondent is using the Domain Name to attract Internet users to his location by relying on their confusion with the trademarks of the Complainant that are famous in connection with the automobile industry and Respondent is doing so for commercial gain. Compounding evidence of bad faith is found in the failure of Respondent to reply to Complainant's communications. Bad faith in the terms of Paragraph 4(a)(iii) of the Policy is proven to the satisfaction of the Administrative Panel.

6.13. In summary, as concluded in 6.5 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 6.10 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 6.12 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.

 

7. Decision

The Decision of the Administrative Panel is that the disputed Domain Name <carfaxtoday.com> is confusingly similar to the trademark CARFAX or 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 <carfaxtoday.com> shall be transferred to the Complainant.

 


 

Dr. Clive N. A. Trotman
Sole Panelist

Dated: September 14, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-0922.html

 

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