WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
General Motors LLC v. Private Whois Service
Case No. D2010-1195
1. The Parties
The Complainant is General Motors LLC, Abelman of New York, United States of America, represented by Abelman Frayne & Schwab, United States of America.
The Respondent is Private Whois Service of Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <chevydealers.com> is registered with Internet.bs Corp.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 20, 2010. On July 20, 2010, the Center transmitted by email to Internet.bs Corp a request for registrar verification in connection with the disputed domain name. On July 20, 2010, Internet.bs Corp. 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” or “UDRP”), 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 July 26, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 15, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 16, 2010.
The Center appointed Knud Wallberg as the sole panelist in this matter on August 26, 2010. 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
The Complainant, General Motors, is an automotive manufacturing company and is among the world’s largest automakers. The Complainant owns over 1000 trademark registrations for the trademark CHEVROLET, or trademarks containing CHEVROLET worldwide and owns over 200 trademark registrations for the trademark CHEVY, or trademarks containing CHEVY worldwide.
The Complainant has a strong Internet presence and owns numerous domain names containing the trademarks CHEVROLET and CHEVY. The Complainant’s predecessor General Motors Corporation has owned the domain name <chevy.com> since November 1997 and the domain name <chevrolet.com> since December 1994.
5. Parties’ Contentions
The domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights<
The domain name <chevydealers.com> is confusingly similar to the trademark CHEVY. The first and dominant element of the domain name incorporates the trademark CHEVY, which is then combined with the word “dealers”. When a well-known and invented mark is combined with a common noun or adjective, that combination constitutes a domain name which is confusingly similar to an invented and world-famous mark such as CHEVY The presence of the top level domain (gTLD) “.com” suffix is irrelevant in the comparison of a domain name to a trademark
The Respondent has no rights or legitimate interests in respect of the domain name;
The Respondent has not received any license or consent, express or implied, to use the trademark CHEVY in a domain name or in any other manner from the Complainant, nor has the Complainant acquiesced in any way to such use or application of the trademark CHEVY by the Respondent. At no time did the Respondent have authorization from the Complainant to register the disputed domain name <chevydealers.com>. To the best knowledge of the Complainant, the Respondent has no legitimate right or interest in the domain name <chevydealers.com>.
To the best of the Complainants knowledge, the Respondent did not use CHEVY, or any other marks containing CHEVY as a trademark, company name, business or trade name that prior to the registration of the disputed domain name, nor is the Respondent otherwise commonly known in reference to CHEVY or CHEVYDEALERS.
The Respondent does not use the domain name <chevydealers.com> in connection with a bona fide offering of goods and services. The domain name <chevydealers.com> is currently associated with links to pay-per-click advertising for an array of goods and services including the Complainant’s products and those of its competitors. By clicking on some of the links, the Internet user is directed to several advertisements and other commercial sites.
The domain name was registered and is being used in bad faith.
The Complainant claims that because of the famous and distinctive nature of the CHEVY trademark, the Respondent is likely to have had constructive notice as to the existence of the Complainant’s trademark CHEVY at the time the Respondent registered the domain name. Such constructive notice suggests that the Respondent acted with opportunistic bad faith in registering the domain name <chevydealers.com>.
Further, the Respondent uses the domain name to divert Internet traffic to his pay-per-click search engine, and has thus attempted to attract, for commercial gain, Internet users to his website. By doing this the Respondent has intentionally attempted to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation or endorsement of the Respondent’s website.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all three elements are present lies with the Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The disputed domain name contains the Complainant’s distinctive trademark CHEVY, with the addition of the generic term “dealers” and of the “.com” designation.
Since the inclusion of the gTLD denomination “.com” shall be disregarded for the purpose of these proceedings the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademarks and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
B. Respondent’s Rights or Legitimate Interests
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating the mark.
The Panel is satisfied that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this by way of a formal Response or otherwise. The disputed domain name was registered several years after the Complainant first registered and started using its trade mark CHEVY, and the Respondent is currently using the disputed domain name for a website that contains only links to other websites – among others links to websites that offers products and services that are similar to those offered by the Complainant. The Respondent thus could not credibly claim that the disputed domain name is intended to be used for any legitimate interests.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy, with reference to paragraph 4(c) of the Policy, are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b)(i) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith.
The Panel is satisfied under the specific circumstances of the present case that the Respondent was likely to have been aware of the Complainant, its CHEVY mark and the Complainant’s activities when registering the disputed domain name. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a name which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
Further, at the time of rendering this decision the disputed domain name was used for a website that contained links to other websites including links related to dealers of CHEVROLET (“Chevy”) cars. The Panel therefore finds that the Respondent by its registration and use of the disputed domain name, intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain name with the purpose of attracting Internet users to the website for commercial gain.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith. The Complainant has proven element 4(a)(iii) of the Policy.
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, <chevydealers.com> be transferred to the Complainant.
Dated: September 8, 2010