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Generic Top Level Domain Name (gTLD) Decisions |
Thrifty, Inc. and Thrifty Car Sales, Inc.
v. FrugalAutoSales.com, Inc.
Claim Number: FA0308000190516
PARTIES
Complainants
are Thrifty, Inc. and Thrifty Car Sales, Inc., Tulsa, OK
(“Complainant”) represented by Nicole M.
Meyer, of Dickinson Wright, PLLC. Respondent is FrugalAutoSales.com, Inc., Tucker, GA (“Respondent”) represented
by Eric W. Eberhardt.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <thriftyautosales.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.
Rodney
C. Kyle as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on 25 August 2003; the Forum received
a hard copy of the
Complaint on 25 August 2003.
On
28 August 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that
the domain name <thriftyautosales.com>
is registered with Network Solutions, Inc. and that the 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
29 August 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of 18
September 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@thriftyautosales.com by e-mail.
A
timely Response was received and determined to be complete on 18 September 2003.
A
timely Additional Submission was received from Complainant and was determined
to be complete on 23 September 2003.
A
timely Additional Submission was received from the Respondent and was
determined to be complete on 26 September 2003.
On 29 September 2003, pursuant to the Complaint request
to have the dispute decided by a single-member
Panel, the Forum appointed Rodney C. Kyle
as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant
“Thrifty, Inc.”.
PARTIES’ CONTENTIONS
A.
Complainant
Basically,
in the Complaint, Complainant makes three main sets of contentions, including
to submit evidence contended to support aspects
of them.
FIRST
MAIN SET
In
the first main set of contentions, Complainant basically makes contentions by
way of four points.
The
first point is that Complainant “Thrifty, Inc.”, has at least two wholly owned
subsidiaries, being “Thrifty Rent-A-Car System,
Inc.” and Complainant “Thrifty
Car Sales, Inc.” and that through those two subsidiaries, respectively, cars
and other vehicles are
rented throughout North America and elsewhere, and
automobiles are sold throughout the United States.
The
second point is that the domain name at issue is registered to Respondent,
beginning from 16 February 2002, as evidenced by a copy of a WHOIS database search
conducted on 7 June 2003 and attached to the Complaint as Annex
1, such that
the Policy is applicable to the domain name at issue, and that the domain name
registration agreement and corresponding
dispute resolution policy that are
applicable to this case are respectively evidenced by Complaint Annexes 2 and
3.
The
third point has two sub-points. The first sub-point is that there are at least
two marks in which Complainant trademark rights
subsist (i.e. United States
Registration No. 2,240,661 for the mark THRIFTY, issued on 20 April 1999 for
used automobile dealership
services in Class 35, and United States Registration
No. 2,477,739 for the mark THRIFTY, issued on 14 August 2001 for used
automobile
dealership services in Class 35), by Complainant “Thrifty, Inc.”
being the owner thereof and by Complainant “Thrifty Car Sales, Inc.”
being that
owner’s licensee thereof— all as evidenced by Complaint Annex 4 (which is a
copy of each of two trademark registration
records downloaded from the United
States Trademark Office) and by Complaint Annex 5 (which is a copy of the
United States Trademark
Office Notice of Recordation of Assignment, reflecting
the recordation of assignment of what later became the 2,240,661 registration,
and a copy of a license agreement licensing each of those marks to Complainant
“Thrifty Car Sales, Inc.”). The second sub-point is
that section 7(b) of the
United States trademarks statute makes those registrations prima facie evidence of Complainant’s ownership of the marks and of
Complainant’s exclusive right to use the registered marks in commerce regulated
by United States law.
The fourth point is that confusing similarity includes instances
of a respondent’s domain name combining a complainant’s mark with a generic
expression having
a relationship to the complainant’s business, and that in
this case the domain name at issue is confusingly similar to each of said trademarks
because the domain name at issue combines the THRIFTY
mark with the expression
“auto sales,” a generic expression which
(in view of the first and third points of this list) has a relationship to the
business of Complainant.
SECOND
MAIN SET
In
the second main set of contentions, Complainant basically contends by way of
two points that Respondent has no “rights or legitimate
interests” in respect
of the domain name at issue.
The
first point is that Respondent is making neither a bona fide offering of goods or services
nor a legitimate noncommercial or fair use of the domain name at issue, since
the domain name at issue
was registered based on its similarity to the
Complainant’s THRIFTY marks and is being used to attract customers to the web
site
at that address and since there is no license or other permission
originating from Complainant for Respondent to use any of Complainant’s
marks or
to apply for any domain name incorporating any of Complainant’s marks. (In so
contending, Complainant apparently relies
on the copy of web site content in
Complaint Annex 6, which content Complainant contends resolves through the
domain name at issue
and appears to offer competing services.)
The
second point is that, prior to registering the domain name at issue, Respondent
had actual notice, or (via the above-mentioned
United States trademark
registrations) constructive notice, of Complainant’s THRIFTY marks, and
Respondent has neither trademark
registrations for the mark THRIFTY AUTO SALES,
nor any other rights in that mark and there is nothing in the WHOIS record that
would
indicate that Respondent is commonly known as THRIFTY AUTO SALES. (In so
contending, Complainant apparently relies on Complaint Annexes
1, 4, and
5.)
THIRD
MAIN SET
In the third main set of
contentions, Complainant basically contends by way of three
points that Respondent’s
registration and use of the domain name at issue is in bad faith.
The first point is that Respondent
uses the domain name (as evidenced, Complainant
contends, by the above-mentioned
Complaint Annex 6) and that by such use Respondent
has attempted to lure unsuspecting
Internet users to Respondent’s web site and siphon off
consumers from Complainant’s web
sites.
The second point has three sub-points.
The first sub-point is that there are circumstances indicating that
Respondent’s purpose in
registering and using the domain name at issue was to
sell the domain name at issue to Complainant for valuable consideration far
in
excess of any possible out-of-pocket costs related to the domain name at issue,
and that such purpose is indicated by an attempted
sale evidenced by Complaint
Annexes 11 and 12. The second sub-point is that Annex 11 is a copy of an eBay
web site printout of 15
July 2003 offering the domain name at issue at a
starting price of $25,000 and showing that there were only approximately eight
and
a half hours left in the ten day eBay auction listing and that no bids had
been received. The third sub-point is that Annex 12 is
an affidavit from
Complainant’s counsel to the effect that the only way by which the auction
listing was discovered by Complainant’s
counsel was as a result of a voicemail
message left for Complainant’s counsel, and which, by the terms of that
message, was purportedly
from an interested purchaser who had seen the auction
listing, but which could only have been from a person who obtained
Complainant’s
counsel’s contact information (such as name and telephone number)
by being affiliated with Respondent in the sense of being privy
to a cease and
desist letter that Complainant’s counsel had delivered, by fax and by e-mail,
to Respondent.
The third point has four sub-points. Overall,
it is to the effect that acts or omissions such as Complainant’s counsel’s
attempts
to deliver that cease and desist letter, and Respondent’s non-response
to that letter, show that Respondent provided false contact
information in the WHOIS (both as to
e-mail and municipal address as well as to registrant name) and on Respondent’s
web site (as
to municipal address) and is not conducting a legitimate business.
The first sub-point is that on 15 April 2003 Complainant’s counsel
used
Respondent’s WHOIS addresses to send e-mail, and U.S. certified mail, to
Respondent regarding the use of the domain name at
issue and Respondent’s use
of THRIFTY at the web site which resolved through the domain name at issue, but
that the e-mail notification
was returned as undeliverable and the certified
letter was returned as “not deliverable as addressed”— all as evidenced by the
copies
of that correspondence and of the return messages that are Complaint
Annex 7. The second sub-point is that in a further attempt to
contact Respondent,
Complainant’s counsel went to the web site that resolved through the domain
name at issue and there obtained
different contact information about Respondent
and proceeded to send an identical letter by certified mail to the municipal
address
listed on the web site, as well as to the e-mail address listed on that
web site and to the fax listed on that web site, and that,
although the
certified letter was returned “unclaimed,” apparently the e-mail and fax were
received— all as evidenced by the copy
of the e-mail, facsimile cover sheet,
and returned envelope that are Complaint Annex 8. The third sub-point is that
the web site
content depicted by the copies in Complaint Annex 6 does not
include the municipal address referred to in the second sub-point of
this
paragraph, since that municipal address was removed from that web site between
when Complainant’s counsel sent the cease and
desist letter and when
Complainant’s counsel made those copies of that web site content, but, as
evidenced by a copy of a search
on Google.com for “thriftyautosales.com” and
which is Complaint Annex 9, that municipal address was previously listed on
that web
site. The fourth sub-point is that, on behalf of Complainant, a local
attorney in Atlanta was requested to check out Respondent’s
municipal addresses
provided in the WHOIS information and on Respondent’s web site and, as
evidenced by the copy of the investigation
report provided via e-mail and that
is Complaint Annex 10, that attorney reported that there is no business called
"Thrifty
Auto Sales" being conducted at either of those municipal
addresses.
B.
Respondent
Basically,
in the Response, Respondent makes three main sets of contentions, but those
contentions do not include any evidence.
First,
apparently in response to the first main set of Complainant’s contentions,
Respondent makes contentions by way of three points.
The first point is that
Respondent’s initial registration of the domain name at issue was in July 2001
rather than on the Complainant-contended
date of 16 February 2002, and
Respondent contends in turn that the Policy is not applicable to such an
earlier registration. The
second point is that the word “Thrifty” is a generic
word being used by many automotive-related businesses including at least two
“Thrifty Auto Sales” doing business in the state of Georgia, in addition to
Respondent’s use of it in business generally and in the
domain name at issue
particularly. The third point is that Respondent neither offers, nor plans to
offer, rental services.
Second,
apparently in response to the second main set of Complainant’s contentions,
Respondent makes contentions by way of three points.
The points are that
whereas Complainant does not appear to be licensed to sell cars in Georgia,
Respondent has a right or legitimate
interest in respect of the domain name at
issue by one or more of (i) its president having been in or related to the used
car business
for about 20 years; (ii) being licensed, by the Sate of Georgia,
to operate a used car business in the state of Georgia as “FrugalAutoSales.com
d/b/a ThriftyAutoSales.com”; and (iii) being paid up through 2005 for the
domain name at issue.
Third,
apparently in response to the third main set of Complainant’s contentions,
Respondent basically contends that the Forum has
reached Respondent by e-mail,
and by regular mail, without having any problems.
C.
Additional Submissions
Neither Party’s Additional Submission
appears to permissibly provide anything pertinent
that, in view of the Complaint and the
Response, was not already apparent to the Panel as
being at issue in this proceeding or as
being the responsibility of the Panel.
FINDINGS
The
Panel finds
(i)
the domain
name at issue is registered to Respondent, there are the above-mentioned United
States trademark registrations in which
Complainant has rights, and the domain
name at issue is confusingly similar thereto;
(ii)
Respondent
has no rights or legitimate interests in respect of the domain name at issue;
and
(iii) the
domain name at issue has been registered and is being used in bad faith.
DISCUSSION
INTRODUCTION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a
complaint
on the basis of the statements and documents submitted and in
accordance with the Policy, these Rules and any rules and principles
of law
that it deems applicable.”
Paragraph
4(a) of the Policy provides 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 registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has
rights;
(ii)
Respondent
has no rights or legitimate interests in respect of the domain name; and
(iii)
the domain
name has been registered and is being used in bad faith.
In
view especially of Rule 15(a), the Panel notes four rules and principles of law that it especially deems applicable to
ascertaining whether each of those three elements has been proven. First, that
Both
[dispositive] and evidential facts must, under the law, be ascertained in some one or more of four possible modes: 1. By
judicial admission (what is not disputed); 2. By judicial notice, or knowledge
(what is known or easily knowable); 3. By judicial perception (what is
ascertained directly through the senses; cf. “real evidence”);
4. By judicial
inference (what is ascertained by reasoning from facts already ascertained by
one or more of the four methods here
outlined).[1]
Second,
especially as to mode “3”, that Rule 10(d) provides that “The Panel shall
determine the admissibility, relevance, materiality
and weight of the
evidence.” Third, as to construing and applying Rule 10(d), especially as to
whether mode “1” rather than mode
“3” applies: a complainant's pleading of fact
that is not disputed (or, phrased differently, not “put in issue”) by a
respondent
against whom it is contended, is an admission by that respondent,[2]
so evidence tendered as being rationally probative of (i.e. as being “relevant
to”) establishing that fact becomes immaterial, and
hence inadmissible, as to
establishing that fact.[3]
Fourth, as to whether mode “2” rather than either of mode “1” or mode “3”
applies, a canvassing of law and commentary shows that
It
was not desirable, nor indeed possible, to foreclose the trier’s use of
background information but should the matter noticed be
in the forefront of the
controversy, should the fact be determinative, the law protected the adversary
by insisting that the matter
be so commonly known, and hence indisputable, that
its notice could not prejudice the opponent.[4]
and that
“The party who has the burden of proof on the issue may have to call on the
trier to judicially notice the fact when it comes
time to analyze the
question.”[5]
PROCEDURAL
MATTERS
Several
administrative panel decisions under the Policy include statements, whether as
to evidence or otherwise, that the Parties
are expected to “get it right the
first time”.[6] In view of
all of the above, the Panel prefers to apply that approach to this case, but
neither as to procedural aspects nor as to
substantive aspects of this case has
that preference affected the outcome of this case: Complainant prevails either
way.
SUBSTANTIVE
MATTERS
The third of the four rules and
principles of law set out in the next to immediately preceding paragraph hereof
is applicable to some
of the Parties’ contentions on this topic. Specifically,
the Panel finds that Respondent admits the first of Complainant’s contentions
on this topic (i.e. as to Complainant corporate structure and
activities) and the last part of the last of Complainant’s contentions
on this
topic (i.e. that the expression “auto sales” is a generic expression and has a relationship to the business of
Complainant).
On the issue raised by Respondent’s
contention that Respondent’s initial registration of the domain name at issue
occurred in July
2001 rather than on the Complainant-contended date of 16
February 2002, Complainant prevails. Respondent’s contention makes material
evidence of Complaint Annex 1, i.e. a copy of a WHOIS database search conducted on 7 June
2003. That evidence is also
relevant, admissible, and of substantial weight in proving that registration of
the domain name at issue occurred
on 16 February 2002, whereas Respondent has
not produced evidence of earlier registration of the domain name at issue, as
contrasted
with some other sort of registration.
In any event, on the follow-on Respondent
contends that the Policy is not applicable to a July 2001 domain name
registration, Complainant
prevails. Respondent’s contention makes material
evidence of Complaint Annexes 2 and 3, i.e. the domain name registration
agreement and corresponding dispute resolution policy. That evidence is also relevant,
admissible, and of substantial weight in proving that the Policy, which
Complaint Annex 3 shows was
“[a]pproved by ICANN: October 24, 1999,” is
applicable to a July 2001 domain name registration, whereas Respondent has not
produced
evidence to the contrary.
On Respondent’s contention that the word
“Thrifty” is a generic word being used by many automotive-related businesses,
Complainant
prevails. There are five steps to reaching that conclusion. First,
Respondent’s contention makes material evidence of Complaint Annexes
4 (i.e. a copy of each of two trademark
registration records downloaded from the United States Trademark Office) and 5
(i.e. a copy
of the United States Trademark Office Notice of Recordation of Assignment,
reflecting the recordation of assignment of what later
became the 2,240,661
registration, and a copy of a license agreement licensing each of those marks
to Complainant “Thrifty Car Sales,
Inc.”). Second, as contended by Complainant,
section 7(b) of the United States trademarks statute makes those registrations prima facie evidence of Complainant
ownership of the marks and of Complainant exclusive right to use the registered
marks in commerce regulated
by United States law. Third, the Complaint Annex 5
evidence is also relevant, admissible, and of substantial weight in proving
likewise.
Fourth, Respondent has not produced evidence to the contrary of
either or both of Complaint Annexes 4 and 5. Fifth, on balance, the
evidence in
Complaint Annexes 4 and 5 is persuasive.
Respondent’s contention that Respondent
neither offers, nor plans to offer, rental services is irrelevant, not the
least of which
because it misses the point that Complainant’s trademark
registrations are as to used automobile dealership services, rather than
as to
rental services.
Also, Respondent has not taken issue with
Complainant’s contention that in principle under Policy ¶ 4(a)(i) there is confusing similarity if a respondent’s
domain name combines a complainant’s mark with a generic expression that has a
relationship
to the complainant’s business. To that principle the Panel adds
the principle from Sweeps Vacuum &
Repair Center, Inc. v. Nett Corp.,
D2001-0031 (WIPO April 13, 2001), that
“graphic elements … not being reproducible in a domain name, need not be considered when assessing
identity or confusing similarity.” As a result, in this case, the domain name
at issue is confusingly similar to each of said trademarks because the domain
name at issue combines the THRIFTY
mark with the expression “auto sales,” a
generic expression which has
a relationship to the business of Complainant.
In view especially of the six immediately
preceding paragraphs hereof, Policy ¶ 4(a)(i) is proven as to the domain name
at issue.
The context in which this part of this
discussion occurs includes (i) Policy paragraph 4(c); and (ii) administrative
panel decisions
as to burden of production.
Policy
Paragraph 4(c)
Policy ¶ 4(c) is basically directed from
a domain name registrar to a domain name registrant and prospective mandatory
administrative
proceeding respondent, and includes that
When you receive a complaint, you should
refer to [Rule 5] in determining how your response should be prepared. Any of
the following
circumstances, in particular but without limitation, if found by
the Panel to be proved based on its evaluation of all evidence presented,
shall
demonstrate your rights or legitimate interests to the domain name for purposes
of [Policy paragraph] 4(a)(ii):
(i) before any notice to you of the
dispute, your use of, or demonstrable preparations to use, the domain name or a
name corresponding
to the domain name in connection with a bona fide offering
of goods or services; or
(ii) you (as an individual, business, or
other organization) have been commonly known by the domain name, even if you
have acquired
no trademark or service mark rights; or
(iii) you are making a legitimate
noncommercial or fair use of the domain name, without intent for commercial
gain to misleadingly
divert consumers or to tarnish the trademark or service
mark at issue.
(See endnote 2 hereof for some provisions
of Rule 5.)
The second main set of Complainant’s
contentions amount to pleadings of Policy ¶ 4(a)(ii) and of negatives of the
enumerated parts
of Policy ¶ 4(c). In view thereof, Complainant has made a prima facie showing that the domain name
at issue is within Policy ¶ 4(a)(ii).
Administrative
Panel Decisions As To Burden Of Production
Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21,
2000) includes that when, as in this case, “the complainant has made a prima facie showing, the burden of
production shifts to the respondent to show by providing concrete evidence that
it has rights to or legitimate
interests in the domain name at issue” (emphasis
in original). (To similar effect see e.g. Gene
Logic Inc. v. Bock, FA 103042 (Nat. Arb. Forum Mar. 4, 2002) and Twentieth Century Fox Film Corp. v. Benstein,
FA 102962 (Nat. Arb. Forum Feb. 27, 2002).)
As explained in the following five
paragraphs, Respondent has not met that burden.
Respondent’s contention that Complainant does not appear to
be licensed to sell cars in Georgia, is irrelevant to Respondent having
a right
or legitimate interest in respect of the domain name at issue.
Respondent’s contention of its president having
been in or related to the used car business for about 20 years is not a
contention
about Respondent per se,
and to that extent it is irrelevant; in any event, the contention is not
supported by any evidence produced by either Party.
Respondent’s contention of being
licensed, by the Sate of Georgia, to operate a used car business in the state
of Georgia as “FrugalAutoSales.com
d/b/a ThriftyAutoSales.com” is not supported
by any evidence produced by either Party in accordance with the Policy and the
Rules.
Even if Respondent had produced evidence,
in accordance with the Policy and the Rules,
that either or both of a State of Georgia “Used Motor Vehicle Dealer
License” or State of Georgia, Department of Revenue, Sales and
Use Tax
Division, “Certificate of Registration” had been issued to a relevant person,
that evidence would not have availed Respondent.
That is so, basically because
of the Used Motor Vehicle Dealers’ and
Used Motor Vehicle Parts Dealers’ Registration Act (i.e. Georgia Code
43-47), and the Georgia Public Revenue
Code (i.e. Georgia Code 48-2-12)
and regulations made under the Georgia
Public Revenue Code as to “Automotive and Other Vehicle Dealers” (i.e.
Regulation 560-12-2-.09): neither individually nor collectively do they result
in a person who respectively has such a license, or such a certificate, thereby
necessarily having “rights or legitimate interests
in respect of the domain
name” within the meaning of that expression as it occurs in Policy ¶ 4(a)(ii).
Moreover, even if Respondent could be
said to have adopted one or more aspects of Complainant’s evidence (i.e. from
the WHOIS record
contained in Complaint Annex 1) and to have contended them to
be in support of the preamble of Policy ¶ 4(c) (i.e. Respondent's contention
that the domain name at issue is Respondent’s, paid up through 2005),
Respondent’s contention would be wrong. If a respondent’s domain
name
registration that is the very subject-matter of a mandatory administrative
proceeding under the Policy could, per se,
confer or evidence “rights or legitimate interests” within the meaning of that
expression as it appears in Policy ¶ 4(a)(ii) then
the Policy would basically
be rendered a nullity. As a result, it has long been well and clearly
established by mandatory administrative
proceeding decisions under the Policy
that such registrations do not do so. See e.g. the following decisions, and
decisions in which
they are cited: N.C.P.
Mktg. Group, Inc. v. Entredomains,
D2000-0387 (WIPO July 5, 2000) and Vestel
Elektronik Sanayi ve Ticaret AS v. Mehmet
Kahveci, D2000-1244 (WIPO Nov. 11, 2000).
Summary
In view especially of the ten immediately
preceding paragraphs hereof, Policy ¶ 4(a)(ii) is proven as to the domain name
at issue.
The context in which this part of this
discussion occurs includes Policy paragraph 4(b).
Policy ¶ 4(b) is basically directed from
a domain name registrar to a domain name registrant and prospective mandatory
administrative
proceeding respondent, and includes that
For the purposes of [Policy paragraph]
4(a)(iii), the following circumstances, in particular but without limitation,
if found by the
Panel to be present, shall be evidence of the registration and
use of a domain name in bad faith:
(i) circumstances indicating that you
have registered or you have 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 that complainant, for valuable consideration in excess of your
documented out-of-pocket costs directly related to
the domain name; or
(ii) you have registered 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 you have engaged in a
pattern of such conduct; or
(iii) you have registered the domain name
primarily for the purpose of disrupting the business of a competitor; or
(iv)
by using the domain name, you have intentionally attempted to attract, for
commercial gain, Internet users to your web site 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 web site or location
or of a product or service on your web site or location.
As for each of Policy paragraphs 4(b)(i),
4(b)(ii), and 4(b)(iii), they basically define respective types of bad-faith
registration
and provide that if any one of such types of registration has been
ascertained by a panel then bad-faith use is in turn evidenced
via application
of the respective one of those three provisions. In this proceeding, although
Policy ¶¶ 4(b)(ii) and 4(b)(iii) do
not appear to be contended by Complainant,
Policy ¶ 4(b)(i) is contended by Complainant (i.e. by the second point of the
Complaint’s
third main set of contentions), and Respondent has not taken issue
with that contention. The Panel finds those Policy ¶ 4(b)(i) contentions
are
admitted by Respondent and are therefore proven. Moreover, in the event the
Panel has erred in finding those admissions, the
Panel has reviewed the
evidence (i.e. Complaint Annexes 11 and 12) and finds it relevant, admissible,
and of such substantial weight
as to basically prove the Policy ¶ 4(b)(i)
contentions Complainant contends it proves.
As for Policy ¶ 4(b)(iv), it basically
defines a type of bad-faith use and provides that if such type of use is
ascertained by a panel
then bad-faith registration is in turn evidenced via
application of that provision. In this proceeding, Policy ¶ 4(b)(iv) is
contended
for by Complainant (i.e. by the first point of the Complaint’s third
main set of contentions), and Respondent has not taken issue
with that
contention. The Panel finds those Policy ¶ 4(b)(iv) contentions are admitted by
Respondent and are therefore proven. Moreover,
in the event the Panel has erred
in finding those admissions, the Panel has reviewed the evidence (i.e.
Complaint Annex 6) and finds
it relevant, admissible, and of such substantial
weight as to basically prove the Policy ¶ 4(b)(iv) contentions Complainant
contends
it proves.
As well, Respondent’s registration and
use of the domain is contended by Complainant (i.e. by the third point of the
Complaint’s third
main set of contentions) to be in bad faith within the
preamble of Policy ¶ 4(b), and Respondent has not taken issue with that
contention.
The Panel finds those Policy ¶ 4(b) preamble contentions are
admitted by Respondent and are therefore proven. Moreover, in the event
the
Panel has erred in finding those
admissions, the Panel has reviewed the evidence (i.e. Complaint Annexes 7, 8,
9, and 10) and finds it relevant, admissible,
and of such substantial weight as
to basically prove the Policy ¶ 4(b) preamble contentions Complainant contends
it proves.
In view especially of the five
immediately preceding paragraphs hereof, Policy ¶ 4(a)(iii) is proven as to the
domain name at issue.
DECISION
Complainant
having established all three elements required by Policy ¶ 4(a), the Panel
concludes that the relief requested by Complainant
shall be GRANTED.
Accordingly, it is Ordered that the <thriftyautosales.com> domain
name be TRANSFERRED from Respondent
to Complainant, “Thrifty, Inc.”.
Rodney C. Kyle, Panelist
Dated: 13 October 2003
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