WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The American Automobile Association, Inc. v. Adam Cooper - AAA Locksmith
Case No. D2015-0683
1. The Parties
Complainant is The American Automobile Association, Inc. ("AAA") of Heathrow, Florida, United States of America ("USA"), represented by Covington & Burling, USA.
Respondent is Adam Cooper - AAA Locksmith of Naples, Florida, USA representing himself.
2. The Domain Name and Registrar
The disputed domain name <aaalocksmithnaples.com> ("the Domain Name") is registered with GoDaddy.com, LLC. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 15, 2015. On April 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name and the Registrar transmitted by email on the same day 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" 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 Respondent of the Complaint, and the proceedings commenced on April 20, 2015. Also in accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2015. The Response was filed with the Center on May 9, 2015 (the "Response").
The Center appointed Harrie R. Samaras as the sole panelist in this matter on June 19, 2015. 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.
On May 11, 2015, Complainant filed a Request to File a Reply accompanied by Complainant's Reply to Respondent's Response. On May 14, 2015, Respondent filed a Request to File a Reply to Respondent's [sic]Response accompanied by the reply.
4. Factual Background
Complainant AAA owns U.S. federal trademark registrations for the AAA Mark (e.g., U.S. Registration Nos. 829,265 (registered May 23, 1967) and 2,158,654 (registered May 19, 1998) for providing emergency road services. It also owns U.S. federal trademark registrations for the AAA PREMIER Mark (e.g., U.S. Registration Nos. 2,900,596 (registered November 2, 2004) and 2,935,481 (registered March 22, 2005) for providing "locksmithing in the nature of opening locks for others", among other services. Together the AAA and AAA PREMIER Marks will be referred to as the "AAA Marks".
Respondent owns a locksmith business that was doing business at least as early as December 2006 under the name AAA Locksmith in Naples, Florida. See Response, Annex C. According to records from the Florida Department of State Division of Corporations, the effective date of Respondent's corporation is September 15, 2007. Respondent registered the Domain Name in 2009.
On August 13, 2014, and September 24, 2014, Complainant sent letters to Respondent, demanding that he cease all use of the AAA Locksmith, Inc. business name and the Domain Name and that he immediately transfer registration of the Domain Name to it. Both of these letters were returned as undeliverable. On November 10, 2014, Complainant called Respondent to confirm his business address. On November 19, 2014, Complainant sent another letter to Respondent with identical requests, this time by first class mail. On December 17, 2014, Complainant sent Respondent a final notice letter reiterating its previous requests. Respondent did not reply to Complainant's letters.
5. Parties' Contentions
Complainant bases its Complaint on its exclusive ownership of the aforementioned U.S. federal trademark registrations and common law rights in the United States for the AAA Marks. Complainant maintains that the AAA Marks are valuable and famous.
In or around August 2014, Complainant learned that Respondent was using the Domain Name to host a website advertising locksmith services under the name AAA Locksmith. Complainant represents that it attempted to contact Respondent by mail and phone, as indicated above, but Respondent did not reply to its letters and continues to use the Domain Name.
Complainant alleges that the Domain Name is substantially and confusingly similar to the AAA Marks. It includes the entire AAA Mark, with the addition of the generic term "locksmith" and the geographically descriptive term "naples," which is a city in Florida. Complainant not only operates in Naples, but the company is headquartered in Florida, making the AAA Marks particularly well known in the state. Complainant argues that adding the generic term "locksmith" to the AAA Marks heightens the likelihood of consumer confusion because Complainant is well known for offering locksmith and related emergency services under its AAA Marks to both regular and premier members. Complainant claims that Respondent's use of the Domain Name is likely to cause, and may have already caused, consumers to become confused as to the source, sponsorship, affiliation, or endorsement of Respondent's Domain Name.
Complainant argues that Respondent has neither a legitimate interest nor any legal right to use the Domain Name because it has not licensed or authorized Respondent to use the AAA Marks for any purpose. Complainant also points out that the AAA Marks in relation to locksmithing and emergency road services date back to 1967 whereas Respondent's business registration was not filed until 2007 and the Domain Name was not created until 2009. Lastly, Complainant argues that Respondent's use of the Domain Name to advertise locksmith services in competition with Complainant's similar services constitutes neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. To constitute a bona fide offering of goods or services, a domain name found to be confusingly similar must have been chosen for reasons completely unrelated to the AAA Marks. Respondent assuredly was aware of Complainant and its AAA Marks when registering the confusingly similar Domain Name and intends to divert Internet users seeking Complainant's products and services to Respondent's website.
Complainant also maintains that Respondent registered the Domain Name in bad faith based on the facts set forth above and the following: Respondent registered a domain name confusingly similar to the AAA Marks to divert Internet users seeking Complainant's services to Respondent's website. Using the AAA Marks in the Domain Name creates a likelihood of confusion for Internet users as to the source, sponsorship, affiliation, or endorsement of the website. Respondent's use of the Domain Name for locksmith services in competition with Complainant, without any legitimate interest, for pecuniary gain, is prima facie evidence of bad faith under the UDRP Policy paragraph 4(b)(iv); Respondent's registration and use of the Domain Name for locksmith services in competition with Complainant is disruptive of Complainant's business and is further evidence of bad faith registration under the UDRP Policy paragraph 4(b)(iii); and Respondent's actual or constructive knowledge of AAA's Marks, based on U.S. and international registrations and the AAA Marks' substantial fame, is further evidence of its bad faith. Also Respondent has no excuse for continuing to use the Domain Name after Complainant put it on actual notice of Complainant's rights.
(ii) Complainant's Supplemental Filing
Complainant claims that Respondent's Response contains misleading contentions. In response to Respondent's claims that Complainant does not offer the same type of services as Respondent, Complainant points out that: (1) it has trademark registrations that specifically cover "home lockout services, namely, locksmithing in the nature of opening locks for others;" (2) Complainant offers vehicle locksmithing services to all AAA members (see Complaint, Annex F); and (3) Respondent admits that he also offers vehicle locksmithing services. Other services offered by either Respondent or Complainant are irrelevant.
Complainant also points out that although Respondent cites the purported lack of actual confusion, it need not show evidence of actual confusion for the AAA Marks to be found confusingly similar. Regarding Respondent's argument that it chose "AAA" as "a rank on an alphabetical grading scale", Complainant argues that this "argument carries little persuasive value when one considers the Internet, which is not organized alphabetically." The American Automobile Association, Inc. v. New Cars Lowest Prices, WIPO Case No. D2011-0337.
Complainant also argues that there is no bona fide offering of goods or services here because the parties are in direct competition.
Respondent maintains that he opened his Locksmith business in August 2006 and in September 2009 registered the Domain Name <aaalocksmithnaples.com> to reflect the name of his business and that the business is in Naples, Florida. He claims that reference to "AAA" locksmith refers to: "a rank on an alphabetical grading scale", it has nothing to do with The American Automobile Association. Respondent argues that he: (1) has never tried to impersonate or tarnish the AAA in any way; (2) does not offer a membership online or anywhere else; (3) does not offer roadside assistance (i.e., flat tire, jump-start, dead battery, towing etc.) like AAA; and (4) is a full-service locksmith company offering all forms of locksmith security to his customers at their homes and business boats, for example, not just "auto" lockouts, which is a very small percentage of the business. Respondent argues that the webpage associated with the Domain Name offers existing and new customers in Naples a way to contact us or to learn about their Locksmith services. Respondent also argues that his business' webpages look nothing like Complainant's webpages (e.g., not the same color scheme, lay out or logo). Respondent argues that there is nothing confusing to the customers whom visit his page. The user opening the webpage will undoubtedly immediately know where they are without confusion.
Respondent further maintains that the word "lock-smith" as a noun is a person who makes and repairs locks and that Complainant does not do this type of work. Respondent points out that AAA Locksmith is a full service locksmith company in Naples, Florida, that offers service on security of residences and commercial properties as well as lock repair, installation and maintenance, safes, security products, etc. They don't just work on automobiles like Complainant. Respondent also represents that he has yet to hear from a customer that they accidently called Complainant to drill open their safe or install a high security panic bar with keypad and key fobs. There is no confusion either way.
Respondent argues that he should have every right to have a webpage with its business name in the title and that his customers should have every right to look him up by name online and find him, contact him, or make inquiries on new security products.
Respondent urges that he has not registered the Domain Name in bad faith and that he is not trying to divert Internet users from seeking Complainant's services stressing that the parties do not provide the same services to their customers.
(ii) Respondent's Supplemental Filing
Respondent argues that Complainant is being misleading by claiming to perform auto or home locksmithing because it is Respondent's understanding that Complainant subcontracts jobs to local locksmiths to open a car or house. Also, a locksmith does more than just open locks for people, any handy man or sheriff's department can do that. Complainant is not a locksmith. Respondent also maintains that it is not using the webpage to sell goods, rather to inform the general public as to who AAA Locksmith is and to also provide sound security advice to keep their families safe.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires that Complainant prove each of the following three elements to obtain an order that the Domain Name should be cancelled or transferred:
(i) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
6.1. Supplemental Filings
The first issue to be determined is whether to accept Complainant's unsolicited supplemental submission and Respondent's supplemental response. In general, the UDRP makes no provisions for unsolicited filings by either party. While there are occasions when a panel may request additional filings, the Panel did not do so here.
This Panel shares the views expressed in Gordon Sumner, p/k/a Sting v. Michael Urvan, WIPO Case No. D2000-0596, that unsolicited submissions will be considered only in exceptional circumstances, and only when the party filing the unsolicited submission explains the exceptional circumstances and why the material could not have been submitted with the Complaint.
In support of its Request, Complainant argues that the purpose of its supplemental filing is to respond to misleading contentions Respondent has made in responding to the Complaint (i.e., regarding Complainant, the AAA Marks, and Respondent's use of the Domain Name). The Panel does not deem Respondent's factual contentions to be misleading in view of the evidence of record adduced by the parties (before the supplemental filings). The remainder of Complainant's supplemental filing is more akin to a reply brief on the merits; it does not truly meet the exceptional circumstances standard. Notwithstanding that, because of the issues presented in this dispute the Panel has considered Complainant's short submission as well as Respondent's even briefer response to insure all arguments have been fully considered.
6.2. Substantive elements of the Policy
A. Identical or Confusingly Similar
Complainant has provided evidence of its U.S. trademark registrations for the AAA Mark and the AAA PREMIER Mark (see Factual Background above). Respondent has not challenged Complainant's rights in those Marks. The Panel thus concludes that Complainant has rights in the AAA and AAA PREMIER Marks in the United States.
In view of the Panel's findings regarding the following two elements of the Policy, the Panel need not make a finding regarding confusing similarity. Notwithstanding that, certain arguments made by Complainant in view of Respondent's evidence and arguments deserve some attention.
Complainant directs the Panel's attention to the recently decided case of American Automobile Association, Inc. v. Tamir Zaid, No. 2: 14-cv-04040-RSWL-RZ (C.D. Cal. Apr. 13, 2015) ("Default Order") involving the use of the AAA Mark in connection with locksmith services. In that case the Court ordered the registrant (Tamir Zaid) of the domain name <aaa-locksmiths.com> to "relinquish all rights, title, and interest, in that domain name, and to transfer the domain name to Plaintiff." Default Order at 3. Complainant argues that "[t]here is no reason to depart from that decision here" and that "the federal court decision is grounded in well-settled trademark law." With regard to the latter point, the district court's four-page Default Order – a default judgment – issued in response to [Complainant's] Motion for Default Judgment and Relief. The Court found that "[Complainant] has met all local procedural requirements for default judgment." Id. at 1. The closest the court came to commenting about any trademark law issue was in addressing certain factors that courts consider for entering a default judgment (citing Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986)). Specifically the court found as one of various factors in favor of Complainant: "that [Complainant's] case appears to be meritorious and sufficiently pleaded in the Complaint." Id. at 3. The procedural posture of the district court case did not necessitate the merits-based analysis the court would have likely performed had the defendant responded. Thus, it is not evident from the Default Order what "well-settled trademark law" the court applied and how it might apply in this proceeding in Complainant's favor. Regarding Complainant's second point, there is reason here to depart from the Default Order because Respondent has responded to Complainant's allegations whereas Mr. Zaid did not respond to the Complaint against him. Moreover, Respondent's evidence and arguments merit due consideration.
A decision of note here is The American Automobile Association, Inc. v. Domains by Proxy, LLC a/k/a Tamir Zaid, aaa locksmith services, WIPO Case No. D2014-0122 (hereinafter, "AAA v. Tamir"). That case involved the same domain name <aaa-locksmiths.com> as in the Default Order case discussed above, and the same domain name registrant – Tamir Zaid. Like the district court case, Mr. Zaid did not reply to the contentions against him. Nonetheless, the panel in AAA v. Tamir found that: (1) the domain name <aaa-locksmiths.com> is not identical or confusingly similar to Complainant's AAA and AAA PREMIER Marks; and (2) complainant failed to demonstrate that respondent lacked rights or legitimate interests in the domain name. Thus, the panel denied the Complaint.
Complainant claims that the Domain Name is substantially and confusingly similar to the AAA Marks (collectively). The Marks for which Complainant obtained a U.S. federal trademark registration specifically for "home lockout services, namely, locksmithing in the nature of opening locks for others" are AAA PREMIER – a word mark (U.S. Registration No. 2,900,596) and AAA in an oval design with "PREMIER" outside the oval (U.S. Registration No. 2,935,481). Complainant has not provided evidence here of its actual use of the term AAA PREMIER in the United States in connection with locksmithing services. In fact one of the two screen shots from Complainant's website made of record here uses "AAA Premier" to designate a class of AAA membership, not locksmith services. Furthermore, the Domain Name <aaalocksmithnaples.com> does not reflect the AAA PREMIER Mark. And although Complainant alleges that the Domain Name is substantially and confusingly similar to the AAA PREMIER Mark, Complainant has not shown how its AAA PREMIER Mark, the mark actually registered for locksmithing services, is substantially and confusingly similar to the Domain Name <aaalocksmithnaples.com>.
Complainant also argues that the Domain Name is confusingly similar to its AAA Mark because it includes the entire AAA Mark, with the addition of the generic term "locksmith" and the geographically descriptive term "naples," which is not only a city in Florida in which Complainant operates, but Complainant is headquartered in Florida.
Respondent maintains that he opened his locksmith business in August 2006 and in September 2009 he registered the Domain Name <aaalocksmithnaples.com> to reflect the name of his business and to reflect the location of that business in Naples, Florida. He argues that the reference to "AAA" locksmith refers to: "a rank on an alphabetical grading scale", it has nothing to do with The American Automobile Association.
The Domain Name <aaalocksmithnaples.com> combines "AAA" with the terms "locksmith" and "naples". As the Panel in AAA v. Tamir found: "In the United States, the combination of letters AAA is used frequently by parties other than Complainant to identify a wide variety of goods and services, if for no other reason than "A" is the first letter of the English-language alphabet and a string of the letter "A" assures a relatively high placement among alphabetical listings." The panel in that case further found that "[w]hile Complainant [AAA] may be well-known in the United States as a provider of travel- and insurance-related services, its trademark is somewhat weak from the standpoint of distinctiveness in so far as it is made up of a commonly used combination of letters. There are a multitude of businesses in the United States that use the term AAA as a principal identifier of goods or services other than in direct competition with Complainant's goods and services." For example, when searching generally "AAA" in the Whitepages online using the "Bing" search engine, in Chicago, a variety of businesses were listed (e.g., "AAA Food", "AAA Solutions", "AAA Sealcoating", "AAA Engineering", 2AAA Crosstown Garage Door", "AAA Gutter Repairs"). Similarly, when searching the Florida Department of State Division of Corporations online for "AAA Locksmith" using the "Bing" search engine, pages upon pages of businesses came up beginning with "AAA" (e.g., "AAA Logistical & Trucking Corp.", "AAA Logistics LLC", "AAA Longacre Construction & Fencing, Inc.", "AAA/Long, Inc.", "AAA Lot Mowing, Inc.").
Complainant's U.S. federal trademark registration Nos. 829,265 (word mark "AAA") and 2,158,654 (AAA in oval design) do not include "locksmithing" among the class of services provided under those marks. As the panel in the AAA v. Tamir case observed: "A trademark may be widely known among consumers in connection with a class or classes of goods and services, yet not distinctive in the sense of being a unique or differentiated term." AAA may be well known in connection with travel-related and insurance services, for example, however, as shown above it is widely used by the public and other businesses outside of Complainant's specific fields of use. Interestingly, in the screen shot Complainant made of record relating to the Naples, Florida branch of AAA, it lists 20 available services and none are locksmithing services.
Complainant has presented no evidence of using the combined term "AAA locksmiths" in commerce in the United States. Indeed, a routine Internet search of "AAA locksmiths" in the "Whitepages" in Florida online using the "Bing" search engine shows many locksmith businesses whose names begin with "AAA." These businesses do not appear to be associated with Complainant. As the panel noted in AAA v. Tamir: "[U]se of the letter combination AAA to identify businesses in the United States unrelated to Complainant is common and manifest to any person who has resided in the United States for any appreciable period of time. The Panel cannot ignore a common feature or usage of the English language. The Panel may take administrative notice of common usages of the English language in determining whether a disputed domain name is confusingly similar to a trademark."
In view of the foregoing it is not entirely clear that Internet users are likely to confuse the Domain Name with Complainant's AAA or AAA PREMIER Marks.
For the foregoing reasons, the Panel finds that Complainant holds rights in the AAA and AAA PREMIER Marks, however, in view of the Panel's finding under the second and third element, the Panel will not decide this case on the first element.
B. Rights or Legitimate Interests
The second element of a claim of abusive domain name registration and use is that respondent has no rights or legitimate interests in respect of the Domain Name (Policy, paragraph 4(a)(ii)). Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests:
"Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the Domain Name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial 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."
Complainant argues it has not licensed or authorized Respondent to use the AAA Marks in connection with its business or as part of the Domain Name. The Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the Domain Name. This shifts the burden of production to Respondent to provide evidence of its rights or legitimate interests in the Domain Name.
Before Complainant first notified Respondent that it was infringing the Marks in 2014, Respondent was doing business as "AAA Locksmith" in 2006 and he was using the Domain Name to direct the public to his company's website advertising products and services to customers in Naples, Florida including: safes; re-keying existing doors; locks for sliding glass doors, windows, and mailboxes; auto services; high security locks; and lock related emergencies. Complainant does not dispute that Respondent was commonly known by the Domain Name.
As mentioned above, Respondent argues that the reference to "AAA" locksmith refers to: "a rank on an alphabetical grading scale", it has nothing to do with The American Automobile Association. Complainant dismisses that argument and maintains that the "argument carries little persuasive value when one considers the Internet, which is not organized alphabetically." (quoting from The American Automobile Association, Inc. v. New Cars Lowest Prices, (supra)). The respondent in that case argued that it was making a legitimate fair use of the domain names at issue (<aaacertifiedpreownedcars.com>, <aaacertifiedpreownedcars.net>, <aaacertifiedusedcars.com>, and <aaacertifiedusedcars.net>) because, among other things, "the letters "AAA" are commonly used by businesses so that they can appear at the top of business directories that are organized alphabetically." The panel in that case addressed respondent's argument stating in part: "While this argument could carry some weight if the Respondent had adopted the Domain Names as actual trade names in connection with its business, that is not the case here." But it is the case here. Respondent has adduced evidence demonstrating its use of "AAA Locksmith" as its trade name on work order invoices, in communications with the State of Florida, on communications with vendors, and in various places on its website. And Respondent states on its website that "AAA Locksmith is a family owned and operated company located in naples fl." and "Locksmiths in Naples Florida". Thus, unlike the The American Automobile Association, Inc. v. New Cars Lowest Prices, (supra) case, Respondent's argument here does carry weight.
Furthermore, as discussed above, a cursory search shows that parties other than Complainant - locksmiths - are using "AAA Locksmith". Thus, it appears to the Panel that Respondent was making a fair use of a common term (AAA) even if Complainant held trademark rights in that term with respect to certain classes of goods and services. Furthermore, when Respondent registered and began using the Domain Name, Respondent appeared to be using it in connection with a bona fide offering of services (i.e. locksmithing in the Naples, Florida area), and because that use constituted fair use of a common term in the English language, Respondent was not on constructive notice of a dispute. See AAA v. Tamir.
Complainant argues that to constitute a bona fide offering of goods or services, a domain name found to be confusingly similar must have been chosen for reasons completely unrelated to Complainant's marks. As Respondent has shown, he chose the Domain Name for reasons completely unrelated to Complainant's Marks, thus, his use is bona fide.
The Panel determines that paragraph 4(a)(ii) of the Policy has not been satisfied.
C. Registered and Used in Bad Faith
For Complainant to succeed, it must prove that Respondent registered the Domain Name with the Complainant's trademark rights in mind and with an abusive intent. Jelique Products Inc. v. cybercafé, WIPO Case No. D2008-1255. In support of its contention that Respondent registered and used the Domain Name in bad faith Complainant's arguments include: (1) the Domain Name is substantially and confusingly similar to the AAA Marks – it incorporates the AAA Mark, the generic term "locksmith" enhances confusion because Complainant is "well known" for offering locksmith and related emergency services, and the geographically descriptive term "naples", a city where Complainant operates; (2) Respondent has no rights or legitimate interests in the Domain Name (e.g., Complainant has not licensed or authorized use of AAA Marks, Complainant's rights in the AAA Marks precede Respondent's use of "AAA", Respondent's use of an infringing Domain Name to advertise locksmith services in competition with AAA is not a bona fide use); (3) using the AAA Marks in the Domain Name creates a likelihood of confusion for Internet users as to the source, sponsorship, affiliation, or endorsement of the website associated with the Domain Name and there is no plausible reason other than causing confusion why Respondent would add the letters AAA to the generic terms in the Domain Name; (4) using an infringing domain name to advertise locksmith services in competition with AAA is disruptive of Complainant's business under 4(b)(iii) of the Policy; and (5) Respondent had actual or constructive knowledge of the AAA Marks based on the U.S. federal and international trademark registrations and fame of the Marks.
Respondent maintains that in September 2009 he registered the Domain Name <aaalocksmithnaples.com> to reflect the name of his business, and that the business is located in Naples, Florida. Respondent further claims he: (1) has never tried to impersonate or tarnish the Complainant in any way; (2) does not offer a membership online or anywhere else; (3) does not offer roadside assistance i.e., flat tire, jump-start, dead battery, towing etc. like AAA; and (4) is a full-service locksmith company offering all forms of locksmith security to his customers at their homes and business boats, for example, not just "auto" lockouts, which is a very small percentage of the business. Respondent urges that they have not registered the Domain Name in bad faith and that they are not trying to divert Internet users from seeking Complainant's services stressing that they do not provide the same services as Complainant including offering a membership for roadside services. He also argues that his business' webpages look nothing like Complainant's webpages (e.g., not the same color scheme, lay out or logo).
As discussed above, the Panel is persuaded that the reference to "AAA" locksmith in the Domain Name refers to: "a rank on an alphabetical grading scale" and that it has nothing to do with The American Automobile Association. Furthermore, although Respondent argues in the context of the first element that the difference in his webpages from Complainant's webpages forestalls any confusion, the Panel takes note of the fact that the significant differences between Respondent's and Complainant's webpages would lead to the conclusion that Respondent was not trying to mimic Complainant's website or otherwise use the Domain Name in bad faith.
Complainant must prove that Respondent was targeting Complainant when he registered the Domain Name. On balance, the Panel is not persuaded on the record before it that Complainant has shown Respondent registered or has used the Domain Name in bad faith.
The Panel determines that paragraph 4(a)(iii) of the Policy has not been satisfied.
For the foregoing reasons, the Complaint is denied.
Harrie R. Samaras
Date: July 3, 2015