DECISION

Frontier-Oldsmobile-Cadillac, Inc. d/b/a Freedom Chevrolet v. David Smith

Claim Number:  FA0305000156845

PARTIES

Complainant is Frontier-Oldsmobile-Cadillac, Inc. d/b/a Freedom Chevrolet, Monroe, NC (“Complainant”) represented by Jami M. Jackson, of Parker, Poe, Adams & Bernstein LLP.  Respondent is David Smith, Waxhaw, NC (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <freedomchevrolet.com>, registered with Network Solutions, Inc.

PANEL

The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on May 8, 2003; the Forum received a hard copy of the Complaint on May 12, 2003.

On May 13, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <freedomchevrolet.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On May 14, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 3, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@freedomchevrolet.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On July 2, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <freedomchevrolet.com> domain name is identical to Complainant’s FREEDOM CHEVROLET mark.

2. Respondent does not have any rights or legitimate interests in the <freedomchevrolet.com> domain name.

3. Respondent registered and used the <freedomchevrolet.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Frontier-Oldsmobile-Cadillac, Inc, has operated a motor vehicle dealership under the name Freedom Chevrolet in Monroe, North Carolina since March of 1999. Pursuant to its business use, Complainant registered the FREEDOM CHEVROLET mark on February 10, 2003, in the state of North Carolina (No. T-17287).

Respondent, David Smith, registered the <freedomchevrolet.com> domain name on March 11, 2003, and is not licensed or authorized to use Complainant’s FREEDOM CHEVROLET mark for any purpose. Respondent is using the disputed domain name to host a complaint website against Complainant and its business in Monroe, North Carolina. On its website, Respondent alleges that he repeatedly received poor service from Complainant’s dealership, and expresses his opinion on the character of those individuals employed at that particular dealership.

DISCUSSION

Paragraph 15(a) of the Rules instructs this 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 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:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant has established rights in the FREEDOM CHEVROLET mark through proof of registration of that mark in the State of North Carolina. See Lee Enters., Inc. v. Polanski, FA 135619 (Nat. Arb. Forum Jan. 22, 2003) (finding evidence that Complainant had established rights in the BILLINGS GAZETTE mark through registration with the Montana and Wyoming state trademark officials); see also Quality Custom Cabinetry, Inc. v. Cabinet Wholesalers, Inc., FA 115349 (Nat. Arb. Forum Sept. 7, 2002) (finding that Complainant’s trademark registrations in Pennsylvania and New Jersey established that Complainant had sufficient standing to bring a claim under the UDRP).

Respondent’s <freedomchevrolet.com> domain name is identical to Complainant’s FREEDOM CHEVROLET mark. The elimination of the space between the two words of Complainant’s mark and the addition of the top-level domain “.com” are both techincal alterations of Complainant’s mark imposed upon Respondent due the the nature of the domain name system. These variations do not prevent the domain name from being considered identical to Complainant’s mark. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2002) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).

Accordingly, the Panel finds that the <freedomchevrolet.com> domain name is identical to Complainant’s FREEDOM CHEVROLET mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Many Internet consumers assume that they can reach a business’ website by simply typing in that company’s name or trademark into a web browser followed by a top-level domain (such as “.com”). Respondent has taken advantage of this fact by registering a domain name that is identical to Complainant’s trade name and trademark. In doing so, Respondent is capitalizing on the goodwill surrounding Complainant’s trademark in order to undermine that very mark. Using Complainant’s mark for these purposes does not bestow upon Respondent rights or legitimate interests in a domain name, as it is not a use protected by the First Amendment. See Sears, Roebuck & Co. v. Hanna Law Office, D2000-0669 (WIPO Sept. 8, 2000) (finding a high degree of initial interest confusion, where consumers would be easily confused, when a Respondent registers a domain name that is identical to a Complainant’s mark for an otherwise fair use); see also Baker &Daniels v. DefaultData.com, FA 104579 (Nat. Arb. Forum Mar. 27, 2002) (finding that because Respondent’s <bakeranddaniels.com> domain name merely incorporates Complainant’s trademark, without more, it is not protected by the First Amendment); see also People for the Ethical Treatment of Animals v. Doughney, 113 F.Supp.2d 915, 919 (E.D.Va.2000) ("PETA") (citing Planned Parenthood Federation of America, Inc. v. Bucci, 42 U.S.P.Q.2d 1430, 1435 (S.D.N.Y.1997)) (" '[Using someone else's identical mark in a domain name to express views antithetical to those of the mark’s holder] is likely to prevent Internet users from reaching plaintiff’s own Internet web site.  The prospective users of plaintiff’s services who mistakenly access Defendant's web site may fail to continue to search for plaintiff’s own home page, due to anger, frustration, or the belief that the Plaintiff's home page does not exist.' ").

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <freedomchevrolet.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent registered a domain name that it knew was identical to Complainant’s FREEDOM CHEVROLET mark, and then used the domain name to tarnish Complainant’s mark with a complaint website. As stated above, Complainant has every right to voice legitimate complaints against Complainant. However, those complaints cannot be expressed in a website located at a domain name that is identical to Complainant’s trademark. The Panel thus finds that Respondent registered and used the <freedomchevrolet.com> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied. See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding bad faith where Respondent knowingly chose a domain name, identical to Complainant’s mark, to voice its concerns, opinions, and criticism about the Complainant); see also Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (finding that the Respondent registered the domain names <kwasizabantu.com>, <kwasizabantu.org>, and <kwasizabantu.net> in bad faith where Respondent published negative comments regarding the Complainant’s organization on the confusingly similar website).

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <freedomchevrolet.com> domain name be TRANSFERRED from Respondent to Complainant.

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  July 16, 2003

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