DECISION

Dollar Rent A Car Inc. v. Albert Jackson

Claim Number:  FA0308000187421

PARTIES

Complainant is Dollar Rent A Car Inc., Tulsa, OK (“Complainant”) represented by Nicole M. Meyer, of Dickinson Wright, PLLC.  Respondent is Albert Jackson, George Town, Grand Cayman (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwdollarrentacar.com>, registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com.

PANEL

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

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 19, 2003; the Forum received a hard copy of the Complaint on August 19, 2003.

On August 19, 2003, Iholdings.Com, Inc. d/b/a Dotregistrar.Com confirmed by e-mail to the Forum that the domain name <wwwdollarrentacar.com> is registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com and that Respondent is the current registrant of the name. Iholdings.Com, Inc. d/b/a Dotregistrar.Com has verified that Respondent is bound by the Iholdings.Com, Inc. d/b/a Dotregistrar.Com 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 August 20, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 9, 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@wwwdollarrentacar.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 September 18, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Judge Harold Kalina (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 <wwwdollarrentacar.com> domain name is confusingly similar to Complainant’s DOLLAR RENT A CAR mark.

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

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

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

FINDINGS

Complainant is one of the largest vehicle rental companies in the United States.  Complainant rents cars and other vehicles from almost 300 locations nationwide.  Complainant holds over twenty registrations for the DOLLAR mark in the U.S. and holds registrations for the DOLLAR mark or variations thereof in over 85 countries.  Complainant registered the DOLLAR RENT A CAR mark with the U.S. Patent and Trademark Office (“USPTO”) on October 28, 1997 (Reg. No. 2,110,019).  Complainant holds the registration for the <dollar.com>, <dollarcar.com> and <dollarrentacar.com> domain names and currently uses the <dollar.com> website in conjunction with its business. 

Respondent registered the <wwwdollarrentacar.com> domain name on May 13, 2003.  Respondent uses the disputed domain name to link to the <landing.domainsponsor.com> website, which provides links to various commercial websites, including car rental websites that compete with Complainant. 

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 DOLLAR RENT A CAR mark through registration with the U.S. Patent and Trademark Office.  See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which Respondent operates.  It is sufficient that Complainant can demonstrate a mark in some jurisdiction).

Respondent’s <wwwdollarrentacar.com> domain name is confusingly similar to Complainant’s mark because the domain name fully incorporates the DOLLAR RENT A CAR mark and has merely omitted the period after the prefix “www” that would normally be found in a website’s address.  Respondent, through its domain name takes advantage of Internet users who mistakenly omit the period after the “www” prefix when they attempt to access the <dollarrentacar.com> domain name.  Thus, the disputed domain name is confusingly similar to Complainant’s DOLLAR RENT A CAR mark.  See Marie Claire Album v.  Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus Respondent 's <wwwmarieclaire.com> domain name is confusingly similar to Complainant's MARIE CLAIRE trademark); see also Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied. 

Rights or Legitimate Interests

Due to Respondent’s failure to contest the allegations of the Complaint, the Panel may presume that Respondent lacks rights or legitimate interests in the <wwwdollarrentacar.com> domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”). 

Also, the record fails to establish that Respondent was authorized or licensed to register or use domain names that incorporate Complainant’s marks.  The WHOIS information for the <wwwdollarrentacar.com> domain name fails to establish Respondent as one commonly known by the disputed domain name or the WWWDOLLARRENTACAR mark.  Therefore, the Panel concludes that Respondent lacks rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See Tercent, Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

In addition, the Panel presumes that Respondent has received pay-per-click fees by using the misleading <wwwdollarrentacar.com> domain name to link to commercial websites and has attempted to disrupt Complainant’s business by linking the disputed domain name to websites of Complainant’s competitors.  Respondent’s use of the misleading <wwwdollarrentacar.com> domain name to commercially benefit and to disrupt Complainant’s business is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that Respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to Complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name); see also Winmark Corp. d/b/a Play It Again Sports v. In The Zone a/k/a Giant Sports Factory, FA 128652 (Nat. Arb. Forum Dec. 6, 2002) (finding that Respondent had no rights or legitimate interests in a domain name that used Complainant’s mark to redirect Internet users to a competitor’s website).

Furthermore, the <wwwdollarrentacar.com> domain name takes advantage of Internet users who mistakenly omit the period between the prefix “www” and Complainant’s DOLLAR RENT A CAR mark.  Respondent commercially benefits from Internet users who misspell Complainant’s mark because Respondent presumably receives pay-per-click fees from Internet vendors who receive visitors via Respondent’s disputed domain name.  Hence, Respondent has engaged in the practice of typosquatting, which is evidence that Respondent lacks rights or legitimate interests in the disputed domain name.  See Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”); see also RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003) (finding that Respondent has no rights or legitimate interests in the <wwwremax.com> domain name as it is merely using Complainant’s mark to earn profit from pop-up advertisements).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. 

Registration and Use in Bad Faith

It can be inferred that Respondent had actual or constructive knowledge of Complainant’s mark because Complainant’s DOLLAR RENT A CAR mark is registered with the USPTO and worldwide, the disputed domain name fully incorporates the mark, and the disputed domain name provides links to Complainant’s competitors.  Registration of a domain name, despite knowledge of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii).  See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof”).

Furthermore, Respondent has engaged in the practice of typosquatting, which is evidence that Respondent registered and used the disputed domain name in bad faith.  See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the “www” portion of [a] web-address,” evidence that the domain name was registered and used in bad faith); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc.  v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. 

DECISION

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

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

Judge Harold Kalina (Ret.), Panelist

Dated:  September 24, 2003

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