The Complainant is Sixt SE of Pullach, Germany, represented by Damm & Mann, Germany.
The Respondent is Giorgi Pharulava of Tbilisi, Georgia. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 4, 2014. On November 4, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 4, 2014, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 12, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was December 2, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 8, 2014.
The Center appointed Assen Alexiev as the sole panelist in this matter on December 18, 2014. 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 an internationally active provider of rental vehicles that operates, either directly or through partner companies, 2,067 rental locations in a variety of countries, including the United States of America. With more than 3,000 employees and total revenues of over EUR 1.66 billion in 2013, the Complainant ranks among Europe’s leading vehicle rental providers.
The Complainant is the owner of the following trademark registrations of the sign SIXT (the “SIXT trademark”):
- The combined trademark SIXT with registration No. 729641, registered as an International trademark on November 26, 1999 for the territories of multiple countries for goods and services in International Classes 12, 36, 37 and 39;
- The word trademark SIXT with registration No. 729643, registered as an International trademark on November 26, 1999 for the territories of multiple countries for goods and services in International Classes 12, 36, 37 and 39;
- The combined trademark SIXT with registration No. 001321884, registered as a Community trademark on October 5, 2000 for goods and services in International Classes 12, 36, 37 and 39;
- The combined trademark SIXT with registration No. 001324953, registered as a Community trademark on October 5, 2000 for goods and services in International Classes 12, 36, 37 and 39;
- The combined trademark SIXT with registration No. 2663752, registered in the United States of America on December 17, 2002 for services in International Class 39;
- The word trademark SIXT with registration No. 2537165, registered in the United States of America on February 5, 2002 for services in International Class 39;
- The combined trademark SIXT with registration No. 39869609, registered in Germany on January 21, 1999 for goods and services in International Classes 12, 36 and 39; and
- The word trademark SIXT with registration No. 39961094, registered in Germany on November 2, 1999 for goods and services in International Classes 12, 36, 37 and 39.
The disputed domain name was registered to the Respondent on October 30, 2012. 5. Parties’ Contentions A. Complainant
The Complainant submits that the disputed domain name is confusingly similar to the SIXT trademark in which the Complainant has rights. The only identifying part of the disputed domain name is the component “sixt”, which is identical to the SIXT trademark. The component “rental” is descriptive. The consumers may mistakenly believe that the website associated to the disputed domain name is an authorized website of the Complainant, as this website offers the same goods and services as those of the Complainant.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has no prior rights in it and is not authorized or licensed by the Complainant to use the SIXT trademarks or to use the disputed domain name for any purposes. The Respondent is completely unknown to the Complainant; it is not an affiliate or a distributor of the Complainant and is not authorized to rent vehicles on behalf of the latter.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Respondent must have been well aware that the Complainant is a successful international rental vehicle provider, and the reason for the registration of the disputed domain name must have been to generate traffic to the Respondent’s website by using a name similar to the well-known trademark of the Complainant.
The Respondent’s website, associated to the disputed domain name, offers car rental services and is directed to Internet users in Georgia, the European Union and the United States. This website also advertises the car rental services of an alleged partner company in Berlin, Germany - Naniko. With this website the Respondent is deceiving consumers by pretending to be part of the Complainant’s company. Internet users would assume that they can rent cars from the Complainant if they access the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name 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 disputed domain name; and
(iii) the Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present his case.
By the Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In the event of a default, under the Rules, paragraph 14(b): “…the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004: “Here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” As stated by the panel in Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443: “Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant […]. In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In this administrative proceeding, the Respondent’s default entitles the Panel to conclude that the Respondent has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take its decision on the basis of the statements and documents submitted by the Complainant and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its trademark rights in the SIXT trademark.
The Panel notes that there is a common practice under the Policy to disregard in appropriate circumstances the generic Top-Level Domains (“gTLD”) such as the “.com” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the disputed domain name that has to be analyzed is its “sixtrental” section, which is a combination of the elements “sixt” and “rental”. The first of these elements is identical to the Complainant’s SIXT trademark. The second element is descriptive of the services of the Complainant and does not render the disputed domain name dissimilar to the SIXT trademark. In view of this, it appears more likely than not that Internet users would mistakenly regard the disputed domain name as related to the Complainant’s car rental services.
For these reasons, the Panel finds that the disputed domain name is confusingly similar to the SIXT trademark in which the Complainant has rights, and the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name. B. Rights or Legitimate Interests
The Complainant is required to make at least a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant makes such a showing, the Respondent may provide evidence to demonstrate that it has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that it is not authorized or licensed to use the SIXT trademark, that it is not an affiliate or a distributor of the Complainant and that it is not authorized to rent vehicles on behalf of the Complainant. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent, although given a fair opportunity to do so, chose not to present to the Panel any response in accordance with the Rules, paragraph 5(b)(i) and 5(b)(ix), despite the consequences that the Panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any legitimate reason for the registration and use of the disputed domain name, it could have brought it to the attention of the Panel. In particular, the Respondent has failed to deny the contentions of the Complainant and to contend that any of the circumstances described in Policy, paragraph 4(c), is present in its favor.
In this situation, the only information available about the Respondent is the contentions of the Complainant and the evidence submitted with the Complaint, the WhoIs information for the disputed domain name, provided by the Registrar and the content of the website at the disputed domain name.
The WhoIs information for the disputed domain name contains no indication that the Respondent is or has been commonly known by the disputed domain name. The disputed domain name itself is confusingly similar to the SIXT trademark of the Complainant, which was registered and used long before the registration of the disputed domain name. The disputed domain name includes the term “rental”, which coincides with one of the core activities carried out by the Complainant. As contended by the Complainant and undisputed by the Respondent, the Respondent uses the disputed domain name for a website offering car rental services to clients in Georgia, the European Union and the United States of America, which again coincides with the business of the Complainant, but does not feature any disclaimer for the lack of relation with or endorsement by the Complainant. In this situation, it is more likely than not that Internet users may be led to wrongly believe that the Respondent’s website is related to or endorsed by the Complainant.
In the Panel’s view, these circumstances show that the Respondent must have been well aware of the Complainant and of its SIXT trademark when the disputed domain name was registered. The registration and use of the disputed domain name took place without the consent of the Complainant. The Panel finds it more likely than not that this registration was made in an attempt to benefit from the reputation of the SIXT trademark to attract customers to the Respondent’s website and then offer them services that compete with the Complainant’s activities. The Panel is of the opinion that such conduct cannot give rise to rights or legitimate interests in the disputed domain name, and finds that the Complainant’s prima facie case has not been rebutted. Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have 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 your documented out of pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The provisions of paragraph 4(b) of the Policy are without limitation, and bad faith registration and use may be found on grounds otherwise satisfactory to the Panel.
The Complainant is active as a rental vehicle provider internationally. The disputed domain name is confusingly similar to the SIXT trademark and was registered without the consent of the Complainant, and the Respondent has failed to show any rights or legitimate interests to register it. The website at the disputed domain name offers car rental services, which coincides with the services of the Complainant for which the SIXT trademark is registered. In these circumstances, the Panel is satisfied that the disputed domain name was registered in view of the popularity of the Complainant’s rental services and the goodwill attached to it. Therefore, the Panel accepts that the disputed domain name was registered in bad faith.
The disputed domain name is linked to a website that offers cars for rent to customers in Georgia, the European Union and the United States of America, and does not feature a disclaimer for the lack of relation with or endorsement by the Complainant. Moreover, the Respondent is advertising, on the website at the disputed domain name, an alleged partner in Berlin, Germany – Naniko. The Panel does not regard such conduct as being made in good faith. Rather, it appears that the Respondent, by using the disputed domain name, attempts to attract to its own website the consumers that are looking for the car rental services offered by the Complainant by creating a likelihood of confusion with the Complainant’s SIXT trademark as to the source or affiliation of the Respondent’s website.
Therefore, and in the lack of any allegation or evidence to the contrary, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith. 7. Decision
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 be transferred to the Complainant.
Assen Alexiev
Sole Panelist
Date: January 1, 2015
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