WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ford Motor Company v. Hector Colina
Case No. D2021-2680
1. The Parties
The Complainant is Ford Motor Company, United States of America (“United States”), represented by Phillips Winchester, United States.
The Respondent is Hector Colina, Venezuela (Bolivarian Republic of).
2. The Domain Name and Registrar
The disputed domain name <fordplantsales.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 16, 2021. On August 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 18, 2021, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 25, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 14, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2021.
The Center appointed Kaya Köklü as the sole panelist in this matter on October 5, 2021. 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 is a leading and well-known automotive company with many operations around the world.
It is the owner of the widely known FORD trademark, which is used since 1895 and is registered in many jurisdictions worldwide. The Complainant particularly owns the United States trademark registrations for FORD No. 74530, registered on July 20, 1909 and No. 643185, registered on March 26, 1957, both of them particularly covering protection for vehicles and their parts (Annexes E, F and G to the Complaint).
The disputed domain name was registered on June 17, 2021.
The Respondent is supposed to be an individual from Venezuela (Bolivarian Republic of).
The screenshots, as provided by the Complainant (Annex I to the Complaint), show that the disputed domain name was associated to a website prominently featuring the Complainant’s word and figurative FORD trademark and creating the (false) impression that Internet users can buy the Complainant’s vehicles directly from its manufacturing plants via that website.
At the time of the decision, the disputed domain name does no longer resolve to an active website.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to its FORD trademark.
It further argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
In addition, the Complainant is convinced that the Respondent has registered and is using the disputed domain name in bad faith.
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 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 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 Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views captured therein.
A. Identical or Confusingly Similar
To begin with, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant is the owner of the widely known FORD trademark, which has been first registered more than a century ago.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s FORD trademark. The disputed domain name fully comprises the FORD trademark. As stated at section 1.8 of the WIPO Overview 3.0, where a trademark is recognizable within the disputed domain name, the addition of other terms would generally not prevent a finding of confusing similarity. In the present case, the mere addition of the dictionary terms “plant” and “sales” does, in view of the Panel, not serve to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s FORD trademark.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
With its Complaint, the Complainant has provided prima facie evidence that the Respondent has no rights or legitimate interests, particularly no license or alike to use the Complainant’s FORD trademark in a confusingly similar way within the disputed domain name.
In the absence of a Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or provide any other evidence of a right or legitimate interest in the disputed domain name. On the contrary, the Panel finds on the available record (Annex I to the Complaint) that the disputed domain name was already used in connection with possibly fraudulent, at least illegitimate activities.
There is particularly no doubt that the Respondent was well aware of the Complainant and its FORD trademark before registering and using the disputed domain name. The Panel is convinced that the Respondent deliberately has chosen the disputed domain name to cause confusion with the Complainant and its business among Internet users. Also, the Panel notes that the nature of the disputed domain name carries a significant risk of implied affiliation or association, as stated in section 2.5.1 of the WIPO Overview 3.0.
Bearing all this in mind, the Panel does not see sufficient basis for assessing a bona fide offering of goods or services by the Respondent.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel believes that the Respondent deliberately attempted to create a likelihood of confusion among Internet users for illegitimate purposes, particularly for the following reasons.
At the date of registration of the disputed domain name, the Respondent was apparently well aware of the Complainant and its FORD trademark. It is obvious to the Panel, that the Respondent has deliberately chosen the disputed domain name to target and mislead Internet users who particularly are searching for sales offers for the Complainant’s vehicles. Consequently, the Panel is convinced that the Respondent has registered the disputed domain name in bad faith.
Additionally, the Panel finds that the Respondent is using the disputed domain names in bad faith. Prominently featuring an identical copy of the Complainant’s word and figurative trademark on the website linked to the disputed domain name, the overall design of that website (Annex l to the Complaint), and the nature of the disputed domain name all indicate that the Respondent intentionally tried to misrepresent itself as the trademark owner to misled Internet users for probably fraudulent, at least illegitimate purposes.
The fact that the disputed domain name does not currently resolve to an active website does not change the Panel’s findings in this respect.
Taking these facts of the case into consideration, the Panel believes that this is a typical cybersquatting case, which the UDRP was designed to stop. The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
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 <fordplantsales.com> be transferred to the Complainant.
Date: October 19, 2021