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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Canadian Tire Corporation, Limited v. C.C.C., Kevin Lyan

Case No. D2006-1049

 

1. The Parties

Complainant is Canadian Tire Corporation, Limited of Canada, represented by Cassels Brock & Blackwell, LLP of Canada.

Respondent is C.C.C., Kevin Lyan of New Zealand.

 

2. The Domain Name and Registrar

The disputed domain name <canadatire.net> is registered with Bizcn.com, Inc..

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 16, 2006. On August 18, 2006, the Center transmitted by email to Bizcn.com, Inc. a request for registrar verification in connection with the domain name at issue. On August 21, 2006, Bizcn.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 Respondent of the Complaint, and the proceedings commenced on August 24, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 13, 2006. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 14, 2006.

The Center appointed Gary J. Nelson as the sole panelist in this matter on September 29, 2006. 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.

This proceeding is conducted in English.

 

4. Factual Background

Complainant is the owner of Canadian Trade Mark Registration Nos. TMA279,853 (CANADIAN TIRE) and TMA469,998 (CANADIAN TIRE [stylized]). These registrations were issued on May 27, 1983, and January 29, 1997, respectively.

Complainant is the identified owner of the <canadiantire.ca> domain name where Complainant promotes automotive parts and related accessories and service, sports and leisure products and home products. Complainant is also the identified owner of the <canadatire.com> and <canadatire.ca> domain names.

Respondent operates a website at “www.canadatire.net” with multiple click-through opportunities to websites promoting and selling automotive products. Respondent registered the <canadatire.net> domain name on October 26, 2005.

 

5. Parties’ Contentions

A. Complainant

Complainant alleges ownership rights in at least two CANADIAN TIRE trademarks registered with the Canadian Intellectual Property Office. Complainant alleges the <canadatire.net> domain name is confusingly similar to its CANADIAN TIRE trademarks.

Complainant alleges continuous and extensive use of the CANADIAN TIRE trademark since at least as early as 1927.

Complainant alleges the existence of over 460 Canadian Tire stores operating in Canada and that nine out of ten adult Canadians shop at Canadian Tire stores at least twice a year, while 64% of Canadians shop at Canadian Tire each month. Complainant further alleges that over 80% of all Canadians live within a 15 minute drive of a Canadian Tire store and that its stores employ over 50,000 Canadians, and that its annual catalogue is distributed to more than eleven million households.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the 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 shall draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

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:

(i) The domain name in issue is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) Respondent has no rights or legitimate interests in the contested domain name; and

(iii) The domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Complainant owns at least two CANADIAN TIRE trademark registrations in Canada. Accordingly, Complainant has established rights in the CANADIAN TIRE trademark pursuant to paragraph 4(a)(i) of the Policy. See Janus International Holding Co. v. Scott Rademacher, WIPO Case No. D2002-0201 (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinct. Respondent has the burden of refuting this assumption).

The <canadatire.net> domain name is confusingly similar to Complainant’s known CANADIAN TIRE trademark. Respondent has merely converted the “canadian” portion of Complainant’s trademark to “canada” for the purpose of registering the contested domain name. This is a minor change and is not sufficient to overcome an allegation of confusing similarity. See EthnicGrocer.com, Inc. v. LatinGrocer.com, Nat. Arb. Forum Case No. FA94384 (finding <ethnicgroceries.com> and <ethnicgrocery.com> to be confusingly similar to Complainant’s ETHNICGROCER trademark). The addition of the generic top-level “.net” domain name is irrelevant to the confusingly similar analysis. See Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429 (finding that top level domain names such as “.net” or “.com” do not affect the domain name for the purpose of determining whether it is identical or confusingly similar to Complainant’s trademark).

Complainant has proven the requirement of the Policy, paragraph 4(a)(i).

B. Rights or Legitimate Interests

The Panel finds that Respondent has no rights or legitimate interests in the contested domain name.

Respondent has failed to file a Response, which can suggest, in appropriate circumstances, that Respondent lacks rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse., WIPO Case No. D2000-1221 (finding that respondent’s failure to respond in a UDRP proceeding can be construed, in appropriate circumstances, as an admission that it has no legitimate interest in the contested domain names).

By not filing a Response, Respondent has not provided any evidence that it is commonly known by the <canadatire.net> domain name, or that it is commonly known by any name consisting of, or incorporating the name, “Canada Tire.” In Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403, the panel held that a lack of rights or legitimate interest could be found where (1) Respondent is not a licensee of Complainant; (2) Complainant’s rights in its related trademarks precede Respondent’s registration of the contested domain name; and (3) Respondent is not commonly known by the domain name in question. The Panel notes that by not submitting a response, Respondent also failed to provide any evidence that it is a licensee of Complainant or that its registration of the <canadatire.net> domain name predates Complainant’s rights in the CANADIAN TIRE trademark.

The <canadatire.net> domain name resolves to a website featuring numerous click-through opportunities for tire and other automotive products. Because Complainant also promotes and distributes automotive products, among other types of goods, the Panel concludes that Respondent is using the contested domain name in association with a website that competes directly with Complainant’s business interests. Furthermore, it is likely Respondent is receiving click-through fees each time an Internet User accesses the website at “www.canadatire.net” and clicks on any of the numerous options available. The use of another’s widely known trademark for the purpose of deriving this type of commercial benefit is evidence that Respondent has no legitimate right or interest in the <canadatire.net> domain name.

Accordingly, the Panel concludes Respondent is not using the <canadatire.net> domain name in association with a bona fide offering of goods and service pursuant to the Policy, paragraph 4(c)(iii). See America Online, Inc. v. Xianfeng Fu, WIPO Case No. D2000-1374 (“it would be unconscionable to find […] a bona fide offering of services in a respondent’s operation of [a] web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business”).

Complainant has proven the requirement of the Policy, paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

The Panel finds that Respondent registered and is using the contested domain name in bad faith.

Respondent is using a slight variation of Complainant’s CANADIAN TIRE trademark to attract Internet user to a website associated with the <canadatire.net> domain name. This website features click-through opportunities to products that compete directly with the products sold by Complainant under its CANADIAN TIRE trademark. This is sufficient evidence of bad faith registration and use and is in violation of paragraph 4(b)(iv) of the Policy. See Lilly ICOS LLC v. Tudor Burdern d/b/a BM Marketing/Burden Marketing, WIPO Case No. D2005-0313.

By not responding to the Complaint, Respondent has also failed to prove it fulfilled its obligation under paragraph 2 of the Policy (“It is your responsibility to determine whether your domain name registration infringes or violates someone else’s rights.”) A failure to comply with this requirement can be construed as evidence that Respondent registered and is using the contested domain name in bad faith.

Complainant has proven the requirement of the Policy, paragraph 4(a)(iii).

 

7. Decision

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


Gary J. Nelson
Sole Panelist

Dated: October 3, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1049.html

 

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