WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arnold Clark Automobiles Limited v. Ian Rodes
Case No. D2018-1473
1. The Parties
The Complainant is Arnold Clark Automobiles Limited of Glasgow, United Kingdom of Great Britain and Northern Ireland ("UK"), represented by Demys Limited, UK.
The Respondent is Ian Rodes of Uckfield, UK.
2. The Domain Name and Registrar
The disputed domain name <arnnoldclark.com> (the "Domain Name") is registered with Register.IT SPA (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 3, 2018, naming the Respondent as "REDACTED FOR PRIVACY". The Center sent its request for registrar verification to the Registrar on July 3, 2018. The Registrar replied on July 4, 2018, confirming that the Domain Name is registered with it and providing the full contact details held for the Domain Name on its WhoIs database, including the registrant's name. The Registrar also confirmed that the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP") applies to the Domain Name, that the Domain Name was registered by the current registrant on April 4, 2018 and will expire on April 4, 2019, that it will remain locked during this proceeding, and that the language of the registration agreement is English.
By email of July 6, 2018 the Center drew the Complainant's attention to the Respondent's identification of the registrant and invited it to submit an amendment to the Complaint. The Complainant submitted an amended Complaint to the Center the same day, naming the Respondent in accordance with the WhoIs data provided in the Registrar's verification response.
The Center verified that the amended Complaint satisfied the formal requirements of the 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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 18, 2018. In accordance with paragraph 5 of the Rules, the due date for Response was August 7, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 8, 2018.
The Center appointed Jonathan Turner as the sole panelist in this matter on August 24, 2018. 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. Having reviewed the file, the Panel is satisfied that the amended Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant was founded in 1954 and now operates a chain of over 200 new and used car dealerships in the UK under the mark ARNOLD CLARK. In 2016 the Complainant sold over 80,000 new cars and 197,000 used cars and had an annual turnover of GBP 3.6 billion. It employs over 11,900 staff.
The Complainant has registered ARNOLD CLARK as a word mark in the UK under number 2300325 with filing date May 11, 2002 and registration date December 13, 2002. It has also registered a stylized presentation of the words "Arnold Clark" as a mark in the UK under number 2103334 with filing date June 20, 1996 and registration date April 4, 1997.
The Domain Name resolves to a registrar/hosting parking page.
The Complainant's representative sent a cease and desist letter to the Respondent, before it filed the present UDRP Complaint, at the email address provided on the public WhoIs database. The representative received an email from the Respondent's registration service provider, stating "[w]e have sought representation from the account in question", but no other response.
5. Parties' Contentions
The Complainant contends that it has rights in the mark ARNOLD CLARK and that the Domain Name is confusingly similar to it. The Complainant points out that the Domain Name differs from this mark only by an additional letter "n" and the generic Top-Level Domain ("gTLD") suffix ".com". The Complainant observes that the Domain Name is a typographical variant of the Complainant's registered mark.
The Complainant submits that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant states that it has found no evidence that the Respondent has been commonly known by the Domain Name or owns any corresponding marks or has ever traded under the names "Arnold Clark" or "Arnnold Clark", and that it has not licensed the Respondent or given the Respondent any permission to use its marks. The Complainant adds that given the fame of its marks and the confusing similarity of the Domain Name to these marks, there is no conceivable use of the Domain Name by the Respondent that would give rise to rights or legitimate interests. The Complainant further regards the Respondent's failure to respond to its representative's cease and desist letter as an admission that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Complainant alleges that the Domain Name was registered and is being used in bad faith. The Complainant notes that passive use can qualify as use for the purpose of the third requirement of the UDRP. The Complainant emphasizes that its business is well known in the UK and beyond, and contends that it is inconceivable that the Respondent could have registered the Domain Name without its marks in mind and with a good faith intention. The Complainant draws attention to the fact that the Domain Name is a typographical variation of its mark and that Panels have observed in other cases that typosquatting is virtually per se registration and use in bad faith. The Complainant further relies on the Respondent's failure to provide any evidence of good faith use in response to its representative's cease and desist letter and on his concealment of his identity
The Complainant requests a decision that the Domain Name be transferred to it.
As stated above, the Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is convenient to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent's failure to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
A. Identical or Confusingly Similar
The Panel finds on the evidence that the Complainant has registered and unregistered rights in the mark ARNOLD CLARK.
The Panel further finds that the Domain Name is confusingly similar to this mark, from which it differs only in the insertion of an additional letter "n", the omission of a space between the two words, and the gTLD suffix. The Domain Name could readily be typed by mistake in place of the ".com" domain name corresponding to the Complainant's mark or could be misread as that domain name.
The first requirement of the UDRP is satisfied.
B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in the Domain Name. On the evidence, it appears that the Respondent has not made or carried out preparations to make a bona fide offering of goods or services, that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name, and that the Respondent is not commonly known by the Domain Name.
None of the circumstances mentioned in paragraph 4(c) of the UDRP as demonstrating rights or legitimate interests in a domain name is present. Nor is there any other basis on which the Respondent could claim any rights or legitimate interests in respect of the Domain Name.
The second requirement of the UDRP is satisfied.
C. Registered and Used in Bad Faith
The Panel notes that the Domain Name consists of a miss-spelling of an established mark that had been used for a number of years on a substantial scale by the Complainant prior to its registration by the Respondent on April 4, 2018. No explanation has been given for the registration of the Domain Name and it is difficult to imagine a bona fide explanation for it. If the Respondent had intended to make some form of bona fide use of the name "Arnold Clark" he would not have miss-spelt it.
In these circumstances, the Panel infers that the Domain Name was registered in bad faith and has since been used in bad faith by holding it with a view to selling it to the Complainant or a competitor of the Complainant or to disrupting the business of the Complainant or to intentionally attracting Internet users to a web page for commercial gain by confusion with the Complainant's mark.
Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith. All three requirements of the UDRP are satisfied and it is appropriate to direct that the Domain Name be transferred to the Complainant.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <arnnoldclark.com> be transferred to the Complainant.
Date: August 27, 2018