WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fairway Chevrolet Company v. Harry Johns
Case No. D2007-1602
1. The Parties
The Complainant is Fairway Chevrolet Company, Las Vegas, Nevada, United States of America, represented by Schwabe, Williamson & Wyatt.
The Respondent is Harry Johns, Henderson, Nevada, United States of America.
2. The Domain Name and Registrar
The disputed Domain Name <fairwaychevrolet.com> is registered with Wild West Domains, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 30, 2007. On October 31, 2007, the Center transmitted by email to Wild West Domains, Inc., a request for registrar verification in connection with the domain name at issue. On November 1, 2007, Wild West Domains, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 the Respondent of the Complaint, and the proceedings commenced on November 8, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was November 28, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 29, 2007.
The Center appointed Mark Partridge as the sole panelist in this matter on December 4, 2007. 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.
The Panel issued a Procedural Order on December 18, 2007, requested that Complainant provide further documentation for its standing to assert rights in the CHEVY and CHEVROLET marks. Complainant responded with additional evidence as more fully set forth below.
4. Factual Background
Complainant is a Chevrolet dealership located in Las Vegas, Nevada, operating under the name Fairway Chevrolet Company. Complainant operates a website at “www.fairwaychevy.com”.
General Motors is the owner of the CHEVROLET and CHEVY trademarks.
The Domain Name was registered on October 28, 2002.
5. Parties’ Contentions
Complainant contends that it has used the terms FAIRWAY, FAIRWAY CHEVROLET and FAIRWAY CHEVY in connection with vehicle sales in Las Vegas, Nevada, since the early 1970’s; that it is an authorized Chevrolet dealer and the marks CHEVROLET and CHEVY marks are used with the permission of General Motors; that it owns common law service mark, trademark and trade name rights in FAIRWAY, FAIRWAY CHEVROLET and FAIRWAY CHEVY.
Complainant also contends that the Domain Name is identical or confusingly similar to a mark in which it has rights; that Respondent has no rights or legitimate interests in the Domain Name nor is he making a bona fide offering of good or services; and that Respondent registered and is using the Domain Name in bad faith as shown by incomplete WHOIS information, his demand for payment in excess of the cost of the domain name, and by the fact the website contains links to commercial entities.
The Respondent did not formally reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 14 of the Rules provides in the event of default that the Panel “may draw such inferences therefrom as it considers appropriate.”
Paragraph 15(a) of the Rules states that “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules or principles of law that it deems applicable.”
Where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. Time Equipment Corp. v. Stage Presence, WIPO Case No. D2003-0850; Express Scripts, Inc. v. Roy Duke, WIPO Case No. D2003-0829; Mondich v. Brown, WIPO Case No. D2000-0004.
A. Identical or Confusingly Similar
Complainant claims common law rights in the names FAIRWAY, FAIRWAY CHEVROLET and FAIRWAY CHEVY based on its business of selling automobiles and related services since the early 1970’s in Las Vegas, Nevada. Complainant argues it acquired good will and rights in the names FAIRWAY, FAIRWAY CHEVROLET and FAIRWAY CHEVY through its continuous and exclusive use of the name to transact its business since that time. In response to a Procedural Order issued on December 18, 2007, Complainant provided documents showing that it is licensed to use General Motors trademarks CHEVROLET and CHEVY and is permitted to own domain names incorporating General Motors CHEVROLET trademark.
In the past, WIPO UDRP panelists have allowed the transfer of domain names incorporating vehicle manufacturer names to dealers. See, AutoNation Holding Corp. v. Asia Ventures, Inc., WIPO Case No. D2005-0789 (transferring the domain name <johnelwaytoyota.com> to a dealer of Toyota vehicles); Justin Kent Luhrs v. Steve Regan, WIPO Case No. D2002-0671 (transferring the domain name <toyota-of-glendale.com> to a dealer of Toyota vehicles); Ourisman Dodge, Inc. v. Ourisman “Okie doke” Dodge dot com and Oyrificeman Dodge dot com, WIPO Case No. D2005-0108 (transferring the domain names <ourismandodge.com>, <ourismandodge.org>, and <ourismandodge.net> to a dealer of Dodge vehicles).
Accordingly, the Panel finds that Complainant has rights in the marks at issue; that the domain name is identical or confusingly similar to marks in which Complainant has rights; and that Complainant has satisfied the first requirement of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Under the Policy 4(c), legitimate interests in a domain name may be demonstrated by showing that: (i) before any notice of this dispute, respondent used, or demonstrably prepared to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; (ii) respondent has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or (iii) respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark at issue.
Here, Respondent has not used the Domain Name in connection with a bona fide offering of goods or services or provided a demonstrable plan to do so. Further, Respondent is not known by the Domain Name. Respondent instead uses the Domain Name to steer Internet users to a website which contains criticism of Complainant’s business. For at least three years, the content of the website at the Domain Name has remained the same beginning with the following two paragraphs:
This site is run by a former customer of Fairway. I will NEVER buy another car from them! Protect yourself if you are going to Fairway. Since I had worked at Fletcher Jones Chevrolet, my ego said that Fairway could not take me for a ride. HA! They got me for a couple of thousand bucks.
Tip: If Fairway promises to do repairs on your car after you buy it, beware! I bought a new car with some dings on it from the lot. (There were a few other problems, too.) The salesman said they were going to repair the dings. After the purchase, the repair shop said they will not do the repairs.
Complainant states it reviewed its business records and was unable to find the name of Respondent listed as a customer. As discussed above, since Respondent defaulted it is appropriate to accept the facts asserted by Complainant and to draw adverse inferences of fact against Respondent. Complainant could not find any record of Respondent being a customer of Fairway Chevrolet and Respondent did not provide evidence to the contrary. Based on the record presented, it appears more likely than not that Respondent was not in fact a customer of Complainant and that the website is not a legitimate criticism site. Instead, it appears that the content of the site is a pretext for avoiding loss of the Domain Name. Accordingly, the Panel finds Respondent lacks any rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
Complainant put forth three arguments why the Domain Name was registered and is being used in bad faith.
1. Respondent is using Domain Name for commercial gain
According to the Whois record the Domain Name was registered by Respondent in October 2002 and then subsequently parked the domain name with Roar.com. The company “Roar.com operates a pay-for-performance search engine and its customers pay a fee to have their website included in the search results; the more a customer pays the higher his site is ranked. “Roar.com” also offers a program wherein participants place search tools on their own website. A program participant receives compensation every time an Internet user links to one of “roar.com” customers by utilizing the search tools located on the participant’s site”. See, The Sportsman’s Guide, Inc. v. Damir Kruzicevic, WIPO Case No. D2002-1127.
Previous panels have found that use of Roar.com in connection with domain names was indicative of bad faith registration. See, Fox News Network, LLC v. Warren Reid, WIPO Case No. D2002-1085, (that commercial use of the domain name to increase Internet traffic directed at a search engine operated by Roar.com Pty Ltd. was evidence of bad faith under Policy, paragraph 4(b)(iv) and finding the use of the domain name was likely to result in consumer confusion as to the complainant’s supposed affiliation with the search engine and its operation).
While the Domain Name was hosted on Roar.com from 2002 to 2004 there is no evidence Respondent actually owned the Domain Name during this period and as such this does not prove that the Domain Name was registered in bad faith.
2. Respondent provided false and incomplete whois information
Complainant asserts the lack of Whois contact information proves the Domain Name was registered in bad faith. The Panel finds this argument unpersuasive. Respondent’s contact information is clearly listed on the website and Complainant had no issues communicating with Respondent1.
3. Respondent requested payment for the Domain Name
Complainant’s third argument is more persuasive. Under Policy, an offer to sell a domain name for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name is evidence that the domain name has been registered and is being used in bad faith. An exception to this is where the Respondent can show that it has rights to or legitimate interests in the domain name at issue. See, CBS Broadcasting, Inc. v. Gaddoor Saidi, WIPO Case No. D2000-0243.
In this case, Respondent was offered $500 to transfer the Domain Name to Complainant. Five weeks later, Respondent contacted Complainant and indicated he would transfer the Domain Name if Complainant would display a collection box for donated eyeglasses to the benefit the Lion’s Club, place a sandwich board sign on the sidewalk promoting the eyeglass donation and then distribute Respondent’s self-help book to all middle schools in the Las Vegas area. Complainant informed Respondent it could not post the sandwich sign and would not distribute his self-help book due to the considerable expense involved. Several weeks later when Complainant’s counsel contacted Respondent about the Domain Name, Respondent told counsel it had received a very sizable offer from one of Complainant’s competitors to purchase the Domain Name and that Complainant would have to make an offer which was much higher than the initial $500 asking price.
These demands combined with the threat of selling the Domain Name to a competitor of the Complainant, and the lack of evidence that the Domain Name is used for legitimate consumer complaint, lead to the conclusion that Respondent has registered and used the Domain Name in bad faith for commercial gain.
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 <fairwaychevrolet.com> be transferred to the Complainant.
Dated: January 25, 2008
1 The Panel notes the full Whois information for the domain name is currently available on the Network Solutions and Wild West Domain websites.