WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION General Motors LLC v. Cann, Jay Case No. D2009-1789 1. The Parties
The Complainant is General Motors LLC of Detroit, Michigan, United States of America, represented by Abelman Frayne & Schwab, United States of America.
The Respondent is Cann, Jay of Dedham, Massachusetts, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Network Solutions, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 22, 2009. On December 29, 2009, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the Domain Name. On December 29, 2009, Network Solutions, LLC 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 December 30, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 19, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 20, 2010.
The Center appointed Michelle Brownlee as the sole panelist in this matter on January 28, 2010. 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 owner of U.S. Trademark Registration No. 201,694 for CADILLAC in connection with automobiles, which claims first use since 1903. The Complainant also owns numerous other U.S. registrations for the CADILLAC word marks and several stylized designs that incorporate the term CADILLAC in connection with a wide variety of goods and services. The Complainant owns more than 500 registrations for the CADILLAC word and design trademarks in jurisdictions throughout the world. 5. Parties' Contentions A. Complainant
The Complainant and its predecessors in interest have been manufacturing and selling automobiles bearing the CADILLAC trademark for more than 100 years. Througout its history, the CADILLAC brand has become synonymous with style, performance, innovation, and luxury in the automotive industry, and is one of the most well-known trademarks in the world. CADILLAC has no meaning in the English language other than its trademark significance. The Complainant conducts business on the Internet using its CADILLAC trademark at the web site “”. The Complainant has also used the brand on many different goods other than automobiles, including apparel, eyeglasses, mugs, cigarette lighters, calculators and cell phones. During 2003 and 2004, the Complainant spent $1.7 billion and $1.9 billion respectively in advertising its vehicles.
The Respondent is using the Domain Name to advertise services of armoring cars for protection from guns and terrorists. The web site falsely suggests a connection with the Complainant by using the Complainant's logo, and by referring to the company providing the services as “Cadillac.” Prior to filing the Complaint, the Complainant made several attempts to contact the Respondent via email but received no response.
The Complainant contends that the Domain Name is confusingly similar to the CADILLAC trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent has registered and is using the Domain Name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Domain Name pairs the Complainant's CADILLAC trademark with the word “armor”. The inclusion of this word does not prevent a finding of confusing similarity. Furthermore, because the CADILLAC mark is so well-known, and because it does not have any meaning other than its trademark significance, it appears highly likely that Internet users who encounter the Domain Name are likely to believe that it is affiliated with or sponsored by the Complainant. Accordingly, the Panel finds that the Domain Name is confusingly similar to the Complainant's CADILLAC trademark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate a right or legitimate interest in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is 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 at issue.
The Respondent's use of the Domain Name cannot be considered a bona fide offering of goods or services because the Respondent's use of the Complainant's well-known trademarks throughout the site demonstrates an intention to falsely suggest affiliation with or sponsorship by the Complainant. The Respondent has not presented any evidence that suggests that he is commonly known by the Domain Name. The Respondent is using the Domain Name for commercial gain with intent to misleadingly divert consumers, so the use cannot be considered a noncommercial or fair use. Thus, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainant has established bad faith under paragraph 4(b)(iv) of the Policy. The Respondent's use of the Domain Name to mislead potential purchasers of its services into the false belief that the Respondent is affiliated with or sponsored by the Complainant attracts Internet users to the Respondent's site by creating confusion as to source and results in commercial gain to the Respondent. 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.
Michelle Brownlee
Sole Panelist
Dated: February 11, 2010
Full & Egal Universal Law Academy