WIPO Arbitration and Mediation Center



Electric Mobility Corporation d/b/a The Rascal Company v. Domain Administrator

Case No. D2008-0715

1. The Parties

Complainant is Electric Mobility Corporation d/b/a The Rascal Company, Sewell, New Jersey, United States of America, represented by Lerner, David, Littenberg, Krumholz & Mentlik, LLP, United States of America.

Respondent is Domain Administrator, Huntington Beach, California, United States of America.

2. The Domain Name and Registrar

The disputed domain name <rascalscooter.com> is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2008. On May 8, 2008, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On May 8, 2008, eNom transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on May 14, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was June 3, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 4, 2008.

The Center appointed R. Mark Halligan as the sole panelist in this matter on June 23, 2008. 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.

4. Factual Background

Since Respondent has not submitted any evidence and has not contested the contentions made by Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by Complainant.

Complainant is one of the premier retailers for electric wheelchairs, electric scooters, and mobility scooters. Complainant has a nationwide sales force and sells its product throughout North America. It also offers its retail services online at “www.electricmobility.com” and “www.rascalscooters.com”. Complainant prides itself on offering quality products and customer service and expends considerable sums in marketing and advertising to cultivate the extensive goodwill that it has developed with its customers. Complainant uses the trademark RASCAL to refer to its goods and services and prominently displays this trademark in its advertising, on its Web site, and in its retail stores. Complainant owns several RASCAL trademark registrations in the United States of America. Complainant has continuously used its RASCAL trademarks in connection with the goods and services identified above since 1982.

On October 4, 2000, Complainant registered the domain name <rascalscooters.com>, and uses this domain name for its primary corporate website. Respondent registered the domain name <rascalscooter.com> on May 24, 2002.

5. Parties’ Contentions

A. Complainant

Respondent has registered the domain name rascalscooter.com (the “Disputed Domain Name”). Complainant contends that the Disputed Domain Name contains Complainant’s trademark and is confusingly similar to Complainant’s trademark, Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and the Disputed Domain Name was registered and is being used in bad faith.

B. Respondent

Respondent did not reply to the Complainant’s contentions. Therefore, pursuant to Rule 5(e), the Panel shall decide the dispute based upon the complaint.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Disputed Domain Name fully incorporates Complainant’s trademark RASCAL. The addition of the term “scooter” does nothing to negate confusing similarity with Complainant’s trademark.

Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the RASCALS trademark in which Complainant has rights.

B. Rights or Legitimate Interests

The Disputed Domain Name selected by Respondent contains Complainant’s trademark. A review of the Web site appearing under the Disputed Domain Name (“Respondent’s Web site”) indicates that the Disputed Domain Name is being used in connection with a Web site which posts links under a variety of subject headings, including, but not limited, to “Rascal Scooter,” “Rascal Mobility Scooter Parts,” “Rascal Scooter 600t,” “Electric Wheelchairs,” and “Electric Scooter.” The link “Rascal Scooter 600t” on Respondent’s Web site makes a direct reference to one of Complainant’s specific product models.

Based on these factors, the Panel finds no rights or legitimate interests of Respondent in the Disputed Domain Name.

C. Registered and Used in Bad Faith

Through its use of the Disputed Domain Name, Respondent is intentionally attempting to attract for commercial gain, Internet users to Respondent’s Web site, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s Web site.

It is clear that Respondent chose the Disputed Domain Name in an effort to free ride off of the goodwill amassed by Complainant in the RASCAL marks. Respondent is using the Disputed Domain Name to confuse consumers and draw Internet users to its Web site. See America Online, Inc. v. AOL International, WIPO Case No. D2000-0654 (intent to trade on goodwill of complainant considered bad faith); Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556 (finding bad faith where the disputed domain names included complainant’s entire trademark to attract consumers interested in complainant’s products “who would plausibly assume that Respondent’s website . . . belong to or are endorsed by Complainant. . . .”).

In conclusion, the Panel is convinced by Complainant’s argument that the Disputed Domain Name was registered and is being used in bad faith.

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 <rascalscooter.com> be transferred to Complainant.

R. Mark Halligan
Sole Panelist

Date: July 12, 2008