WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION TPI Holdings, Inc. v. Carol Fante Case No. D2009-0281 1. The Parties
The Complainant is TPI Holdings, Inc., Atlanta, Georgia, United States of America, represented by Dow Lohnes, PLLC, United States of America.
The Respondent is Carol Fante, San Marcos, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 3, 2009. On March 4, 2009, the Center transmitted by email to Melbourne IT Ltd a request for registrar verification in connection with the disputed domain name. On March 5, 2009, Melbourne IT Ltd 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 March 12, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was April 1, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 2, 2009.
The Center appointed William F. Hamilton as the sole panelist in this matter on May 12, 2009. 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 the assignee of all the registrations and goodwill associated with numerous AUTO TRADER trademarks and service marks. The Complainant's AUTO TRADER marks were registered in the 1970s and have been in constant use since then in relation to, inter alia, periodical publications, advertising services and providing information on vehicle sale.
The disputed domain name was registered on May 6, 2008. The Respondent, Carol Fante, denies any knowledge of the disputed domain name or its registration. 5. Parties' Contentions A. Complainant
The Complainant asserts the disputed domain name is confusingly similar to its AUTO TRADER marks. According to the Complainant, “It is well accepted that such an act of adding a generic term to a registered trademark is insufficient to avoid a finding of confusing similarity under the Policy. Telemundo Network Group LLC v. LaPorte Holdings,WIPO Case No. D2005-0966 (October 31, 2005).”
The Complainant further asserts the Respondent has no legitimate rights or interests in the AUTO TRADER marks. “Respondent has never been authorized by Complainant to use any of the … AUTO TRADER [m]arks.” The Complainant argues that, “[t]his fact gives rise to a presumption that the Respondent cannot establish that it has rights or any legitimate interest in the [disputed domain name]. See, e.g., Guerlain S.A. v. SL, Blancel Web,WIPO Case No. D2000-1191 (November 21, 2000).” Additionally, the Complainant asserts that the “failure to associate the [disputed domain name] with an active website is additional evidence that Respondent has no legitimate right or interest in the [disputed domain name]. See Electro-Banque v. Ahmed Anis Darragi,WIPO Case No. D2001-0119 (March 28, 2001).”
Lastly, the Complainant contends the disputed domain name was registered in bad faith. According to the Complainant, “[the] use of false contact information or a registrant's attempt to conceal his or her identity when registering a domain name is evidence of registration and use of a domain name in bad faith. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 (February 18, 2000).” Moreover, the Complainant argues that “Respondent's attempt to conceal its identity and Respondent's use of Carol Fante's personal information instead of its own demonstrate[s] obvious bad faith…in contravention of Paragraph 4(b)(iv) of the Policy.” B. Respondent
The Respondent did not formally reply to the Complainant's contentions. However the nominal Respondent, Carol Fante, advised the Complainant that she did not register the disputed domain name and believes the registration of the disputed domain name was part of the theft of her “identity” by unknown persons.
Carol Fante has provided an affidavit to the Complainant which recites:
“Without my consent, authorization or permission, my name, credit card number and other personal information were recently published on the Internet in connection with an online real estate listing. As a result my identity was stolen, and I have expended a great deal of time and effort trying to deal with the consequences. I did not register the domain name, I did not authorize anyone to register the domain name on my behalf, and I had no knowledge whatsoever of the domain name until [contacted by the Complainant]. I can only conclude that this fraudulent registration is somehow connected to the theft of my identity.” 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds the disputed domain name is confusingly similar to the Complainant's AUTO TRADER marks. The addition of the generic suffix “transactions” to the Complainant's AUTO TRADER mark is insufficient to avoid confusion. B. Rights or Legitimate Interests
The Complainant has denied providing the Respondent with authorization to use the AUTO TRADER mark. As discussed above, the nominal Respondent, Carol Fante, believes an unknown third party has registered the disputed domain name using her identity without her authorization. Carol Fante believes she is a victim of a third party's illegal activities. Clearly, these circumstances establish, and the Panel accordingly finds, that there are no legitimate rights or interests backing the registration of the disputed domain name. C. Registered and Used in Bad Faith
The Panel has no difficulty in concluding that the disputed domain name was registered in bad faith. If, as Carol Fante asserts, the disputed domain name was registered without her knowledge and consent, then the registration was clearly in bad faith. If, on the other hand, Carol Fante registered the disputed domain name, then the registration was also in bad faith given her sworn affidavit. The Panel, however, has no reason to doubt Carol Fante's affidavit and, on this record, accepts the affidavit as truthful. 7. Decision
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 be transferred to the Complainant.
William F. Hamilton
Sole Panelist
Dated: May 26, 2009
Full & Egal Universal Law Academy