WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
General Motors LLC v. Auzo Inc.
Case No. D2011-2153
1. The Parties
The Complainant is General Motors LLC of Detroit, Michigan, United States of America, represented by Abelman Frayne & Schwab, United States of America.
The Respondent is Auzo Inc. of Phoenix, Arizona, United States of America.
2. The Domain Name and Registrar
The disputed domain name <chevroletperformance.com> is registered with DomainPeople, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 7, 2011. On December 8, 2011, the Center transmitted by email to DomainPeople, Inc. a request for registrar verification in connection with the disputed domain name. On December 14, 2011, DomainPeople, 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” 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 December 19, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 8, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on January 9, 2012.
The Center appointed Dennis A. Foster as the sole panelist in this matter on January 18, 2012. 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
Throughout the twentieth century, the Complainant, a manufacturer of motorized vehicles, was arguably the most well-known American corporation, and its CHEVROLET mark is one of the most internationally-famous marks. The Complainant holds numerous registrations for the CHEVROLET mark throughout the world, including with the United States Patent and Trademark Office (“USPTO”) (e.g., United States Trademark Registration No. 0216070, registered August 3, 1926).
The Respondent, a United States resident, is the owner of the disputed domain name, <chevroletperformance.com>, and the date of registration is October 3, 2000. The disputed domain name is used to host a website that refers to the Complainant and provides links to the websites of the Complainant’s competitors on a pay-per-click basis.
5. Parties’ Contentions
- The Complainant is an American company that has been in operation since 1908, and is one of the largest manufacturers of automobiles in the world. Employing some 244,500 people worldwide, the Complainant sells its products in about 140 countries.
- The Complainant’s CHEVROLET trademark – used for one of its automobile product lines – is among the most internationally famous trademarks.
- The Complainant owns over 1,000 trademark registrations worldwide for the CHEVROLET mark, including with the USPTO. The Complainant conducts business relative to the CHEVROLET line of products over the Internet through, among other domain names, <chevrolet.com>.
- The Complainant has promoted aggressively its CHEVROLET mark through various jingles and taglines (e.g., “See the USA in your Chevrolet”) that are so famous as to have become part of popular American culture; and the cars made under that trademark have been celebrated in internationally-famous songs.
- The goodwill associated with the Complainant’s CHEVROLET mark is monumental.
- The disputed domain name, <chevroletperformance.com>, is confusingly similar to the Complainant’s trademark, CHEVROLET. That invented trademark is fully incorporated within the name, and the addition of the common term “performance” creates no meaningful distinction. The inclusion of the gTLD “.com” is also irrelevant in distinguishing the disputed domain name from the trademark.
- The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has obtained from the Complainant no license or authorization to use the CHEVROLET mark in any manner, including within a domain name. There is no evidence to believe that the Respondent is commonly known as the disputed domain name. Moreover, as the name is used for a “parking page” that provides links on a pay-per-click basis to third-party advertising and websites (some of which offer the goods and/or services of the Complainant’s competitors), the Respondent is not using that name in connection with a bona fide offering of goods or services.
- Prior to these proceedings, the Complainant attempted to contact the Respondent – as referenced on the disputed domain name’s WhoIs record – through both email and postal service, but such correspondence was deemed undeliverable.
- The disputed domain name was registered and is being used in bad faith. Based on the fame and distinctive nature of the Complainant’s mark, the Respondent had at least constructive knowledge of that mark and thus registered the disputed domain name in opportunistic bad faith. Moreover, the Respondent has attempted to attract for commercial gain Internet users to its website by creating the likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website at the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with Policy paragraphs 4(a)(i)–(iii), the Panel shall find that the Complainant has prevailed in these proceedings and should gain a transfer of the disputed domain name <chevroletperformance.com> provided that the Complainant can demonstrate that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Due to the fame of the Complainant’s CHEVROLET trademark and the ample evidence, as attached to the Complaint, of its registration by the Complainant with competent national authorities such as the USPTO, the Panel concludes that the Complainant does indeed possess requisite rights in that mark to satisfy Policy paragraph 4(a)(i). See, Drugstore.com, Inc. v. Nurhul Chee / Robert Murry, WIPO Case No. D2008-0230 (“it is consensus view among Panelists that if a complainant owns a registered trademark it satisfies the threshold requirement of having trademark rights.”); and Metropolitan Life Insurance Company v. Domain Admin, NAF Claim No. FA860544 (“Complainant has established rights in the METROPOITAN mark through registration with the USPTO.”).
The disputed domain name, <chevroletperformance.com>, contains the CHEVROLET mark in its entirety in the first position, followed by the descriptive term, “performance”. Because the latter term can be used to describe a general attribute of cars produced under that mark, the term fails to distinguish the disputed domain term from the mark sufficiently to avoid confusing similarity between the two, in the opinion of the Panel. Moreover, the addition of the gTLD, “.com”, is of no consequence in providing any such distinction. See, Barclays Bank PLC v. Barclaysmobile.com / Rampe Purda, WIPO Case No. D2011-0124 (ruling that the disputed domain name, <barclaysmobile.com>, is confusingly similar to the BARCLAYS trademark); Amazon.com, Inc v. Sung Hee Cho, WIPO Case No. D2001-1276 (finding <amazoncar.com> and <amazonecar.com> to be confusingly similar to the well known AMAZON mark); and General Motors LLC v. Isaac Goldstein, unlisted media, WIPO Case No. D2010-0450 (“The addition of the generic top-level domain “.com” is insufficient to distinguish the disputed domain name from the Complainant's marks.”).
Ergo, the Panel finds that the Complainant has satisfied the requirements of Policy paragraph 4(a)(i).
B. Rights or Legitimate Interests
It is clear to the Panel that the Complaint sets forth a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The name is confusingly similar to the Complainant’s famous mark, and the Complainant contends without equivocation that it did not authorize or license use of that mark by the Respondent. The Complainant’s prima facie case places upon the Respondent the responsibility to come forward with a convincing rebuttal. See, Accor v. Eren Atesmen, WIPO Case No. D2009-0701(“A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, after which the burden of rebuttal passes to the respondent.”); and Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, NAF Claim No. FA741828 (“Before shifting the burden to Respondent, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy [paragraph] 4(a)(ii)”).
Failing to file a Response, the Respondent submits no rebuttal at all. Otherwise, the record reveals to the Panel no evidence that the Respondent, “Auzo, Inc.”, has been commonly known as the disputed domain name, <chevroletperformance.com>, or any close approximation thereof. so the Panel will not invoke Policy paragraph 4(c)(ii) on the Respondent’s behalf. Moreover, the Complainant contends convincingly (see Complaint, Annex 18), without contradiction from the Respondent, that the Respondent uses the disputed domain name to host a website that contains unauthorized references to the Complainant’s offerings and furnishes links to the sites of the Complainant’s competitors. In line with a consensus of previous UDRP decisions, the Panel concludes that such use is neither a bona fide offering of goods or services in satisfaction of paragraph 4(c)(i) nor a legitimate noncommercial or fair use in satisfaction of paragraph 4(c)(iii). See, for example, Donald J. Trump v. Mediaking LLC d/b/a Mediaking Corporation and Aaftek Domain Corp., WIPO Case No. D2010-1404 (“It is well-established that operating a link farm parking page using a distinctive trademark in a domain name, and providing connection to goods and/or services competitive with the trademark owner, does not establish rights or legitimate interests.”); and Skyhawke Technologies, LLC v. The Tidewinds Group, Inc. a/k/a DNS Admin, NAF Claim No. FA949608 (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy [paragraph] 4(c)(i), or a legitimate noncommercial or fair use under Policy [paragraph] 4(c)(iii)”).
As the Respondent has failed to rebut the Complainant’s prima facie case, the Panel finds that the Complainant has satisfied the requirements of Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Panel notes that the Complainant’s CHEVROLET trademark has been in use in the United States of America, where the Respondent resides and throughout the entire world, for most of the last century. It is one of the best-known marks in the world; as, in turn, the Complainant is one of the best-known companies in the world. Thus, it is inconceivable to the Panel that the Respondent was unaware of that famous mark and the Complainant’s ownership of it.
That an entity such as the Respondent, with no tangible connection to the Complainant or its mark, should employ that mark as the first component of a domain name is a clear example to the Panel of opportunistic bad faith registration and use of such a name. (See, Société des Produits Nestlé SA v. Telmex Management Services, WIPO Case No. D2002-0070 where the panel found bad faith registration and use of the disputed domain name, <nestlefoods.com>, relative to the complainant’s famous NESTLE trademark, based on the conclusion that, “Complainant’s trademarks are famous, and have evidently been known to Respondent when registering the contested domain name. Said domain name is highly unlikely to have been registered if it were not for Complainant’s trademarks.”); and Chanel, Inc. v. Buybeauty.com, WIPO Case No. D2000-1126 (“CHANEL is an immediately recognizable and famous mark that exclusively identifies Complainant. Given that Respondent has no connection with Complainant and has never been authorized by Complainant to use the CHANEL mark, the very fact that Respondent has registered buychanel.com establishes bad faith use and registration.”).
As a result, the Panel finds that the Complainant has satisfied the requirements of Policy paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <chevroletperformance.com>, be transferred to the Complainant.
Dennis A. Foster
Dated: February 1, 2012