WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION BendPak Inc. v. A & E Garage Equipment Case No. D2009-1366 1. The Parties
The Complainant is BendPak Inc. of California, United States of America represented by Wennergren Law Offices of United States of America.
The Respondent is A & E Garage Equipment of United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name (“Disputed Domain Name”) is registered with Tucows Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 14, 2009. On October 15, 2009, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On October 15, 2009, Tucows Inc. 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 October 21, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 10, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 11, 2009.
The Center appointed Alistair Payne as the sole panelist in this matter on November 13, 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 based in California owns trade mark registrations for the RANGER trade mark in the United States of America under registration number 2191483 for goods in class 7 and in particular for power operated whole automobile lifts and pipe bending machines and has made an application under the Madrid Protocol for similar registrations in various other countries.
The Respondent based in the United Kingdom of Great Britain and Northern Ireland (“UK”) appears from its website to sell garage equipment throughout the United Kingdom and registered the Disputed Domain Name on July 29, 2008. 5. Parties' Contentions A. Complainant
The Complainant contends that the Disputed Domain Name is identical or confusingly similar to its registered trade mark RANGER.
It submits that there is no evidence that the Respondent has made a bona fide use or preparations to use the Disputed Domain Name, has not been commonly known by the Disputed Domain Name, is not making a legitimate non-commercial or fair use of the Disputed Domain Name and accordingly has no rights or legitimate interests in it.
The Complainant says that it is informed and believes that the Respondent acquired the Disputed Domain Name for the purpose of selling, renting or otherwise transferring the Disputed Domain Name to the Complainant and that this belief is based in part on the Respondent's refusal to transfer the Disputed Domain Name to the Complainant.
In addition the Complainant says that it is informed and believes that the Respondent has used the Disputed Domain Name to intentionally attract for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's mark whether as to source, sponsorship or affiliation or endorsement of the Respondent's website or location or of a product or service on the Respondent's website or location. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Disputed Domain Name is clearly not identical to the Disputed Domain Name as submitted by the Complainant. However the addition of the two generic words “garage equipment” following the word “ranger” are not sufficient to distinguish the Disputed Domain Name and accordingly it is confusingly similar to the Complainant's registered RANGER trade mark.
The Complaint therefore succeeds in relation to the first element under the Policy. B. Rights or Legitimate Interests
The onus is upon the Complainant to make out a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and then it is for the Respondent to rebut that case.
In this case the Complainant has said that there is no evidence that the Respondent has made a bona fide use of or preparations to use the Disputed Domain Name, is not known by the Disputed Domain name and is not making a legitimate non-commercial or fair use of the Disputed Domain Name. However, the Complainant provides neither details of the way in which the Respondent is using the Disputed Domain Name nor any supporting discussion or evidence to support these assertions. The Complainant's submissions under the second element in the Complaint comprise no more than four brief conclusory sentences. In addition the Complainant provides nothing in its submissions in relation to the third element of the Policy which would have the effect of supporting its case under this head.
As noted above, it is incumbent upon a Complainant to make out at least a prima facie case in relation to this element of the Policy. This involves at least providing details of the way in which the Disputed Domain Name is being used both at the date of Complaint and prior to that time and providing details of the names or marks actually used by the Respondent and of any interaction that it has had with the Respondent which might support its case.
None of this information is provided by the Complainant in this case apart from a copy of the Respondent's web page which appears at the domain name and which is not formally annexed to or further described in the Complaint. The Panel notes that this domain name differs from the Disputed Domain Name by the inclusion of a hyphen which suggests that the Respondent may not only own the Disputed Domain Name, but also possibly the domain name .
In any event, in these circumstances the Panel considers that the Complainant has not met the burden upon it of even making out a prima facie case in relation to this element of the Complainant. This is so even though the Respondent has failed to respond to the Complaint and falls into a very small minority of cases in which there is simply insufficient information before the Panel to allow it reasonably to conclude that the Complainant has established its prima facie case.
For this reason the Complainant does not succeed in relation to the second element of the Policy and accordingly the Complaint must fail. C. Registered and Used in Bad Faith
Although it is unnecessary in this event for the Panel to consider the third element of the Policy for the sake of completeness the Panel notes that there is also insufficient information provided in the Complaint to support the Complainant's case under this element of the Policy.
Firstly, the Complainant submits that the Respondent acquired the Disputed Domain Name for the purposes of selling it to the Complainant and that this belief is based in part upon the Respondent's refusal to transfer the Disputed Domain Name to the Complainant, however no details of the Complainant's attempt to request the Disputed Domain Name from the Respondent are provided in the Complaint and no other circumstances or facts are submitted in support of this allegation.
Secondly, the Complainant submits that the Respondent is intentionally trying to attract Internet users to its website by creating confusion as to the Complainant's association or affiliation with the Complainant. Again, no supporting evidence is provided in the Complaint. Simply based upon the description of the Complainant's goods in its trade mark registration compared with the description of the Respondent's business in the copy of its home page as submitted in the Complaint, it appears to the Panel that the parties are not in competition and operate in quite different spheres of activity - the manufacture of automobile lifts and pipe bending machines, presumably mainly in the United States compared with the provision of standard equipment for vehicle garages in the United Kingdom. Accordingly, there is very little if no potential for confusion and certainly insufficient evidence for the Panel to infer intent to confuse.
Neither is there other evidence to support both registration and use in bad faith which would otherwise be required under this element. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Alistair Payne
Sole Panelist
Dated: November 22, 2009
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