WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Alamo Rent-A-Car Management, LP v. Lorna Kang
Case No. D2003-0536
1. The Parties
The Complainant is Alamo Rent-A-Car Management, LP of Fort Lauderdale, Florida, United States of America, represented by Piper Rudnick, United States of America.
The Respondent is Lorna Kang of Perak, Malaysia.
2. The Domain Name and Registrar
The disputed domain name <alamocarrental.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 7, 2003. On July 8, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On July 10, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 Paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 14, 2003. In accordance with Paragraph 5(a) of the Rules, the due date for Response was August 3, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on August 7, 2003.
The Center appointed Knud Wallberg as the sole panelist in this matter on August 14, 2003. 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 Paragraph 7 of the Rules.
4. Factual Background
The Complainant is the owner several trade and service marks, including ALAMO and ALAMO RENT-A-CAR, in the United States and many other countries related to car rental business.
Complainant has been operating since 1977, and licenses the use of these marks to its affiliates.
The Complainant operates a website at "www.alamo.com".
5. Partiesí Contentions
Respondent registered and is using a domain name that is confusingly similar to Complainant's marks. Respondent is using the domain name to redirect Internet users to websites, which either provides competing online travel services or online gambling services under the designations "www.vipfares.com" and "www.euroseek.com" respectively. The website "www.vipfares.com" contains several links to third party websites offering automobile and travel related services.
Complainant has no business relationship whatsoever with Respondent. Complainant has not licensed or otherwise permitted Respondent to use its marks or to apply for any domain name incorporating any such marks. Respondent has made no use of the domain name other than to use it as a host for Respondent's website and to link other websites offering services that are in direct competition with Complainant's services. Thus, Respondent has no rights or legitimate interest in the domain name.
The Respondent registered and is using the domain name in bad faith. He is fully aware of the Complainantís marks and is using them to link to inter alia a competing service.
In addition Respondent is cyber squatter that has been involved in a substantial number of cases filed under the UDRP.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
Pursuant to Paragraph 15(a) of the Rules, the Panel shall decide the complaint on the basis of the statements and documents submitted and 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 are satisfied:
1. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
2. The Respondent has no rights or legitimate interests in respect of the domain name; and
3. The 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 these 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 Panel finds that Complainant has substantially proven that they have used the marks ALAMO and ALAMO RENT-A-CAR since at least 1977, and that the Complainant holds several registrations of the marks at least in the USA.
The Panel further finds that the domain name is confusingly similar to these marks. The domain name wholly incorporates Complainantís distinctive mark ALAMO and only adds a generic term that is descriptive of the Complainantís goods or services marketed in relation to the trademark. See Alamo Rent-A-Car Management, LP v. Patrick Ory, WIPO Case No. D2003-0461 with references.
B. Rights or Legitimate Interests
According to Paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to Respondent of the dispute, his 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) Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if he has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate non commercial 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.
The Respondent did not file a Response, and thus did not dispute the contentions in the Complaint nor provided the Panel with information as to any legitimate interests in the registration and use of the domain name.
There are no elements showing that the Respondent is or was commonly known by the domain name and there is no evidence that the Respondent is making or could be envisaged to make legitimate non commercial or fair use of the domain name.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or 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 the Respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iii) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website 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 Respondent's website or location or of a product.
The Panel finds it inconceivable that Respondent chose to include the word "alamo" and the addition of "carrental" in the domain name without knowledge of Complainant, Complainant activities and the name and trademark under which Complainant is doing business. This is true even if the mark is not registered in the country of residence of Respondent.
The addition by Respondent of the words "car rental" in the domain name, adds to this assumption since it merely describes the Complainant's principal services.
Further, the domain name was and is used to offer services partly competing with the Complainantís as described in the Complaint.
The Panel also finds that the claim that Respondent is engaged in cyber squatting activities has been substantiated.
The Panel therefore finds that the prerequisites under Paragraph 4(a)(iii) cf. 4(b) of the Rules are fulfilled.
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, <alamocarrental.com>, be transferred to the Complainant.
Dated: August 22, 2003