WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION The American Automobile Association, Inc. v. Bharat Parekh Case No. D2010-0272 1. The Parties
The Complainant is The American Automobile Association, Inc., with its principal place of business in Florida, United States of America, represented by Covington & Burling of Washington, D.C., United States of America.
The Respondent is Bharat Parekh of California, United States of America 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with 1&1 Internet AG. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 22, 2010. On February 23, 2010, the Center transmitted by email to 1&1 Internet AG a request for registrar verification in connection with the disputed domain name. On February 23, 2010, 1&1 Internet AG 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 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 21, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 29, 2010.
The Center appointed Christopher S. Gibson as the sole panelist in this matter on April 15, 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 American Automobile Association (“AAA”) has used its AAA marks in commerce in the United States of America since at least 1902, offering various products and services for motor vehicle owners and those interested in travel. The Complainant is the owner of numerous national registrations for the AAA mark in the United States of America and other countries around the world. The AAA marks are widely recognized by consumers and have acquired significant goodwill as identifying the products and services of Complainant and its local member clubs. See e.g., American Automobile Association, Inc. v. Nevis Domains LLC,WIPO Case No. D2006-0489.
The Complainant maintains several websites in connection with its nearly 100 Internet domain names and registered the domain on August 3, 1990.
The Respondent registered the Domain Name on September 27, 2008. The Domain Name resolves to a parking site containing pay-per-click advertising links to the Complainant's official website as well as to third-party websites offering products and services, some of which compete directly with those of the Complainant.
The record reflects that the Complainant sent the Respondent a cease and desist letter on February 20, 2009, demanding transfer of the Domain Name. The Respondent did not reply. On June 30, 2009, the Complainant sent a second cease and desist letter, but again received no response. 5. Parties' Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to its AAA mark, because the Domain Name incorporates the entirety of the Complainant's mark, and that the additional descriptive terms “world” and “tours” have an obvious relationship to the Complainant's core travel and tourism-related services. The Complainant asserts that the Respondent lacks rights or legitimate interests in the Domain Name. The Complainant maintains that the Respondent has not been authorized to use the Complainant's AAA mark and Respondent is not commonly known by the Domain Name. The Complainant contends that the Respondent is not making any legitimate commercial or noncommercial use of the Domain Name, but instead registered it in a bad faith attempt (i) to attract Internet visitors to a pay-per-click parking website with links to the services and products of the Complainant's direct competitors; (ii) to disrupt Complainant's business; and (iii) with actual or constructive knowledge of the Complainant's AAA marks, based on their registration in with the United States of America and their substantial fame in the United States of America and abroad. B. Respondent
The Respondent did not submit a response. 6. Discussion and Findings
Where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. Insofar as the Respondent has defaulted, it is therefore appropriate to accept the facts asserted by the Complainant and to draw adverse inferences of fact against the Respondent. See American Automobile Association, Inc. v. Nevis Domains LLC,WIPO Case No. D2006-0489.
Nonetheless, paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
As noted above, the Complainant has established that it has strong rights in its AAA marks based not only on state and federal trademark registrations, but also on long-standing use and widespread promotion in the United States and other countries. Regarding confusing similarity, the Domain Name incorporates the Complainant's AAA mark in its entirety, while adding the descriptive terms “world” and “tours” that relate directly to Complainant's business. As such, these terms do not dispel confusing similarity, but in all likelihood heighten the confusion. See American Automobile Association, Inc. v. Nevis Domains LLC,WIPO Case No. D2006-0489 (use of “automotive” in the domain name along with the AAA mark “actually serves to increase the likelihood of confusion”).
The Panel finds that the Domain Name is confusingly similar to the Complainant's AAA mark for purposes of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel is persuaded from the record of this case that the Complainant has made a prima facie showing under paragraph 4(a)(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name. First, it is uncontested that the Respondent is not authorized to use the Complainant's AAA mark or to appropriate the mark for use with domain names. There is no indication in the record that the Respondent has ever been commonly known by the Domain Name. Moreover, under the circumstances of this case, the Respondent cannot credibly claim to be making a legitimate noncommercial or fair use of the Domain Name. Instead, the Respondent has used the Domain Name to divert Internet users to a parked website featuring advertising links to websites offering goods or services that compete with those of the Complainant.
Insofar as the Complainant has made a prima facie showing that the Respondent lacks rights to the Domain Name, this shifts the burden to the Respondent to show by concrete evidence that it has rights or legitimate interests in the Domain Name. The Respondent, however, has provided no response and thus no evidence to carry its burden. In any event, the Panel has carefully reviewed the record in this case and finds nothing therein that would suggest that the Respondent has any rights or legitimate interests in the Domain Name.
Accordingly, 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 circumstances of this case as reflected in the record demonstrate the Respondent's bad faith registration and use of the Domain Name. It is a reasonable inference from the circumstances that the Respondent, located in the United States of America, knew of the Complainant and targeted the Complainant's AAA mark when registering the Domain Name comprised of the Complainant's AAA mark coupled with the terms “world tours.” The record also reflects the Respondent's use of the Domain Name to attract Internet users to a website featuring per-per-click advertising links to providers of goods and services, some of which compete with the Complainant. Further, the record reflects that the Respondent renewed the registration for the Domain Name even after receiving notice from the Complainant demanding that the Respondent cease its unauthorized use of the Complainant's marks. In the absence of any evidence to the contrary being offered by the Respondent, such circumstances manifest the Respondent's bad faith intent to target and exploit the Complainant's AAA mark. The circumstances thus indicate that the Respondent used the Domain Name, in violation of paragraph 4(b)(iv) of the Policy, to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant's AAA mark.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 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.
Christopher S. Gibson
Sole Panelist
Date: May 17, 2010
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