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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
NCRAS Management, LP v. Patrick Ory
Case No. D2001-1287
1. The Parties
The Complainant in this administrative proceeding is NCRAS Management, LP, a Delaware limited partnership with a principal place of business at 200 South Andrews Avenue, Fort Lauderdale, Florida, USA.
The Respondent in this Administrative Proceeding is Patrick Ory, with an address of Calle 16, Cancun, Q.Roo 1935 AH, Mexico.
2. The Domain Name and Registrar
The disputed domain name is < national-carrental.com >. The Registrar of this domain name is Core Internet Council of Registrars, World Trade Center II, 29, Route de Pré-Bois, CH-1215 Geneva – Switzerland.
By registering the subject domain name with the Registrar, the Respondent agreed to the resolution of disputes pursuant to the Policy and Rules.
3. Procedural History
This is a mandatory administrative proceeding submitted for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, (the "Rules") and the World Intellectual Property Organization ("WIPO") Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
The Administrative Panel consisting of one member was appointed on December 20, 2001, by WIPO.
Complainant filed its Complaint with the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") on October 23, 2001, by email and on October 26, 2001, by hard copy. The Center dispatched to the Registrar a Request for Registrar Verification on October 30, 2001. On November 2, 2001, having verified that the Complaint satisfied the formal requirements of the Policy and the Rules, the Center formally commenced this proceeding and notified the Respondent that its Response would be due by November 22, 2001. The Respondent did not file a response by the due date.
An examination of this material confirms that all technical requirements for the prosecution of this proceeding were met.
Neither party requested an opportunity to make further submissions and the Administrative Panel is content to proceed on the basis of the existing record.
4. Factual Background
The following information is derived from the Complainant’s material.
The Complainant owns the trademarks, service marks, trade dress and trade names related to the "National Car Rental" vehicle rental and leasing business. It is the current owner of numerous registrations issued by the United States Patent and Trademark Office
As the owner of the marks, the Complainant is responsible for licensing the authorized uses of the marks and for protecting them from infringement, dilution, disparagement, misappropriation and unfair competition. The Complainant licenses the marks to its affiliate National Car Rental Systems, Inc., the National Car Rental operating company and its affiliate National Car Rental Licensing, Inc., which franchises the National Car Rental business. The Complainant, National Car Rental System, Inc., National Car Rental Licensing, Inc. and each of their subsidiaries and predecessors-in-interest are referred to collectively as "National".
National is known throughout the United States, Canada and the world as a provider of high-quality vehicle rental and leasing services. For over half a century, since as early as November 1949, National has prominently used the marks in connection with its vehicle rental and leasing business. National has established and maintains high standards of quality for its services. Throughout decades of use, the marks have become well and favorably known throughout the United States, Canada and internationally.
The marks have been advertised to the purchasing public and to the trade throughout the United States and internationally on an extensive and frequent basis by a variety of advertising media, including newspapers, magazines, television, radio, trade publications, the Internet, through the naming and promotion of a major sports arena and through signs and counters in virtually every major airport. The marks are easily recognizable to the trade and public as originating from National. As a result, they and the goodwill associated therewith are of inestimable value to the Complainant. By virtue of the wide renown of the marks and the wide geographic availability and extensive sale of National’s services, the marks have become famous and distinctive in the minds of the purchasing public.
The Complainant intends to preserve and maintain its rights with respect to the marks and registrations and to continue to use the marks in connection with vehicle rental and leasing services, as well as other related services and promotional activities. The registrations are maintained diligently and are currently in full force and effect. Many of registrations have become "incontestable." The marks have been continuously and widely used by National since their inception and are currently used throughout the United States and worldwide.
National operates its official Internet website at <nationalcar.com> (the "National Website"). Consumers can access information about National and its products and services, and even make reservations on-line via the National Website. The National Website is a vital and integral part of National’s worldwide vehicle rental and leasing business.
The Respondent has not been licensed or otherwise permitted to use the Complainant’s marks or to apply for any domain name incorporating any such marks.
The Respondent appears to be in the business of providing discount travel services as evidenced by the website to which the subject domain name resolves.
The Respondent uses the Complainant’s marks and logo on its website.
The Respondent’s website provides links to other Internet websites that apparently are owned by, or affiliated with the Respondent. For example, after accessing <national-carrental.com>, the consumer is offered multiple links for travel information related to numerous cities and countries, in addition to what appear to be links to the National Website. The links to the National Website simply lead back to the first page of the Respondent’s website. They do not access the National Website or any other site authorized by the Complainant. The only apparent access to National reservation service is through the link to <travelnow.com> (accessed only through the other city or country links contained in the website). This link also features competing travel and automobile rental services.
Upon learning that the Respondent had registered the subject domain name and was using the Complainant’s marks. The Complainant, through its counsel, attempted to resolve the matter before initiating a formal domain name dispute. On April 20, 2001, counsel sent a letter to the Respondent at the addresses indicated for Respondent in the WHOIS database for the subject domain name, as well as another domain name registered by the Respondent . In the letter, counsel explained that National owns the exclusive, worldwide rights in the name and mark National Rent-Car and informed the Respondent that its bad faith registration and use of the subject domain name is in violation of the federal Anticybersquatting Consumer Protection Act, as well as federal Trademark law. The letter further demanded that the Respondent cease its infringement and assign the Domain Name to National. The Respondent did not respond to the letter.
The Respondent made no submission in this proceeding.
5. Parties’ Contentions
The Complainant relies on its use and registration of the words "national car rental. It says that the subject domain name is identical to its marks except for the addition of the hyphen between "national" and "car" and the elimination of the space between "car" and "rental."
It is asserted that the Respondent does not have a legitimate interest in the subject domain name because it is used to draw consumers to competing businesses and because it incorporates the Complainant’s mark.
As to bad faith, the Complainant says that the subject domain name is being used to draw potential customers from the Complainant, to mislead consumers and points to the fact that although accused of bad faith, the Respondent has made no attempt to defend himself.
The Respondent has not participated in this proceeding.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove that:
(i) the domain name is identical or confusingly similar to a service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interest in respect of the domain name;
(iii) the domain name has been registered and is being used in bad faith.
Paragraph 4(b) provides for the implication of evidence of bad faith in a number of circumstances:
(i) circumstances that indicate that the Respondent has registered or has 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 the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name;
(ii) registration of 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 the Respondent has engaged in a pattern of such conduct;
(iii) registration of the domain name primarily for the purpose of disrupting the business of a competitor;
(iv) by using the domain name, intentionally attempting to attract, for commercial gain, Internet users to the Respondent’s 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 the website or location or of a product or service on it or a location.
These are illustrative and do not represent the only circumstances from which may arise evidence of bad faith.
The Complainant refers to a number of domain name dispute decisions and to the decisions of domestic courts. While these are neither controlling nor binding on this administrative panel, they can be of assistance.
The resolution of this dispute takes place in the context of a consideration of the requirements of paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
It is clear that the Complainant has right to and has a long-standing use of the words "national car rental" The subject domain name differs in no material way.
The Administrative Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(i).
B. Respondents Legitimate Interest
A respondent is not obliged to make submissions in a domain name dispute proceeding. The absence of a submission will not lead to a default decision, but the absence of any information may lead to inferences that support a Complainant’s case.
Use of another’s mark in a domain name prima facie is not legitimate and without explanation deprives a respondent of a legitimate interest in the domain name. In this case, the use of the subject domain name to attract customers by misleading them supports strongly the conclusion that the Respondent does not have a legitimate interest in the subject domain name.
The Administrative Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(ii).
C. Bad Faith
Conclusions that a domain name is identical to rights of a complainant and that a respondent does not have a legitimate interest in the domain name, standing alone generally do not establish bad faith, but the facts that lead to those conclusions may be relevant to a consideration of the issue of bad faith.
Similarly, although a respondent is not obliged to participate in a domain name dispute, the fact that it does not do so leaves it vulnerable to inferences that flow naturally from the information presented to the administrative panel by a complainant.
In this case, the Respondent has used the Complainants marks to attract customers from the Complainant by misleading them into thinking that they are contacting the Complainant. It is apparent that this was the initial objective of the Respondent and has remained his course of conduct.
The Complainant properly took exception to the Respondent’s conduct, asserted that he was acting in bad faith and sought transference of the subject domain name. The Respondent said nothing.
The Administrative Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(iii).
Based on the evidence and its findings, the Administrative Panel concludes that the Complainant has established its case.
The Complainant asks that the subject domain name be transferred to it. The Administrative Panel so orders.
Edward C. Chiasson
Dated: December 28, 2001
1. Complainant’s sister corporation has simultaneously filed an ICANN Complaint in connection with Respondent’s <alamo-carrental.com> website.