The Complainant is Budget Rent A Car System, Inc. of New Jersey, United States of America, internally represented.
The Respondent is Admin, Domain of Shanghai, People's Republic of China.
2. The Domain Name and Registrar
The disputed domain name <budgetcanada.com> is registered with Network Solutions, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 2, 2010. On February 3, 2010, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the disputed domain name. On February 3, 2010, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on February 18, 2010. The Center verified that the Complaint together with the amendment to 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 February 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 10, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on March 11, 2010.
The Center appointed John Swinson as the sole panelist in this matter on March 18, 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 in this matter is a corporation registered in the United States. A subsidiary of the Avis Budget Group, Inc, the corporation is engaged in the offering of vehicle rental services around the world. The Complainant owns hundreds of BUDGET trademarks globally.
Very little is known from the record about the Respondent, Admin, Domain. The Respondent appears listed as “Whois Watchdog” on some of the domain records submitted in this case. Both names appear to be aliases.
It seems that the Respondent registered the disputed domain name in or around December 2009.
5. Parties' Contentions
A. Complainant
The Complainant submits that the disputed domain name is identical or confusingly similar to trademarks in which it has rights. The Complainant is the owner of over 350 BUDGET trademark registrations and applications in over 125 countries. The Complainant submits that it has used the BUDGET trademark in the United States since 1960 and has expended significant time and resources in promoting its goodwill in the BUDGET trademark. The disputed domain name <budgetcanada.com> consists of the BUDGET trademark, followed by the geographical name “Canada”. The mere addition of a geographical term is insufficient to avoid a likelihood of confusion with the Complainant's trademark.
The Complainant also submits that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant submits that its predecessor-at-interest entered into a licence agreement with Prairie View Holdings Ltd dba Budget Auto Canada Ltd (“Budget Canada”) which granted Budget Canada the right to operate vehicle rental locations under the BUDGET trademark in Calgary, Canada. It is submitted that Budget Canada registered the disputed domain name in November 1997 and inadvertently failed to renew it in November 2009. By December 2009, the Respondent had registered the disputed domain name. The Complainant submits that the Respondent is not a franchisee or licensee under the BUDGET system and is not otherwise affiliated with the Complainant and the Respondent is not commonly known by the disputed domain name or the BUDGET trademark. The Complainant notes that the disputed domain name is used to redirect to a generic search engine website. It submits that the Respondent is not therefore using the domain name to make a bona fide offering of goods or services or making a fair, noncommercial use of it.
Finally, the Complainant submits that the Respondent registered and is using the disputed domain name in bad faith. The Complainant submits that:
(a) Registration of the disputed domain name was acquired to prevent it, as the trademark owner, from reflecting the BUDGET trademark in a corresponding domain name. This is evidenced by the fact that the Respondent had constructive, if not actual, knowledge of the BUDGET trademark and continues to use the disputed domain name notwithstanding this knowledge.
(b) Registration of the disputed domain name was primarily for the purpose of disrupting the business of a competitor. It is submitted that the Respondent's actions may be depriving the Complainant or its licensees from contact by existing or prospective customers due to an expectation that the disputed domain name would be reflective of an official site for the Complainant or its licensees.
(c) The Respondent is attempting to attract, for commercial gain, Internet users to its website at the disputed domain name by creating a likelihood of confusion with the Complainant's trademark. The Respondent is using the famous BUDGET trademark to divert customers to its own website.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Complainant bears the onus of demonstrating that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trade mark 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 disputed domain name has been registered and is being used in bad faith.
In the Panel's view, the Complainant has met this onus in the circumstances of this case, for the reasons set out below.
A. Identical or Confusingly Similar
It is clear that the Complainant has extensive trademark rights in BUDGET. It owns trademark registrations for the BUDGET word and associated logos in many countries. It has held many of these for a significant period of time. It owns and operates, among others, a website at <budget.com>. It has advertised extensively using the BUDGET trademark and has significant goodwill in the brand.
It is also clear, in the Panel's view, that the disputed domain name is confusingly similar to the BUDGET trademark. The disputed domain name reproduces the BUDGET trademark in its entirety, with the addition of the geographical location indicator “Canada”. The Panel accepts the Complainant's submission that the mere addition of this country name cannot remove any likelihood of confusion. Indeed, as the Complainant, through its licensee, has operations in Canada, the addition of the geographic name may result in a greater likelihood of confusion: see Accor v. Thawan Laungrungthip,
WIPO Case No. D2006-0365.
The Complainant has established the first element of the Policy.
B. Rights or Legitimate Interests
The Complainant is required to make out a prima facie case that the Respondent lacks rights or interests in the disputed domain name. The onus then shifts to the Respondent to demonstrate the existence of such rights or interests: see the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 2.1 and cases cited therein.
The Complainant has demonstrated that the Respondent is not affiliated with the Complainant or any of its related companies. It has demonstrated that the Respondent is not a licensee of the BUDGET trademark. It has established that the Respondent is not commonly known by the BUDGET name. The Complainant has therefore made out the required prima facie case.
Paragraph 4(c) of the Policy outlines a number of means by which a Respondent may be able to demonstrate rights or interests in a given disputed domain:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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 or service mark at issue.
The Respondent did not reply to the Complainant's contentions. However, from the Panel's examination of the use to which the disputed domain name is put, it is not apparent that any of these alternatives could be established. When accessed by the Panel, the disputed domain name diverts to a search engine which provides links to car rental sites. Such use cannot be described either as legitimate noncommercial use or as a bona fide offering of products or services: see Auer Lighting GmbH v. Domain Privacy LTD / The Tidewinds Group, Inc.,
WIPO Case No. D2009-1622.
The Complainant has established the second element of the Policy.
C. Registered and Used in Bad Faith
The Panel is of the view that bad faith is established in this case.
The Respondent appears to have registered the disputed domain name soon after it became available as a result of the inadvertence of Budget Canada in renewing it: see in respect of lapses in registration JP Labalette SA v. Laksh Internet Solutions Private Limited/Private Whois Escrow Domains Private Limited,
WIPO Case No. D2008-0817; Hotel Services Company LLC v. Xiaojie Yu,
WIPO Case No. D2009-0647. It would be surprising if, in such circumstances, the Respondent was not aware of the use to which the disputed domain name had previously been put. The BUDGET trademark is well-known globally as the brand of a vehicle rental company and it would be unusual if the Respondent was not aware of the Complainant's rights in that trademark.
The Panel accepts, particularly given that the disputed domain name was, until recently, owned by Budget Canada, that confusion is likely to result between the disputed domain name and the Complainant's BUDGET trademark. The Respondent would likely have been aware of the likelihood of that confusion arising. In addition, at least when accessed by the Panel, the disputed domain name diverts to a search engine which contains links to car rental sites, in Australia and elsewhere around the world, including in Canada. The disputed domain name is being used as a pay-per-click parking page where revenue is generated through advertisements that divert Internet users to sites that, among other things, offer services that compete with those of the Complainant: see Auer Lighting GmbH v. Domain Privacy LTD / The Tidewinds Group, Inc., supra. The clear inference to this Panel is that the Respondent is attempting to trade off the Complainant's trademarks and reputation in the business of vehicle rental for its own commercial gain.(instead of any dictionary meaning associated with the term “budget”). This falls squarely within paragraph 4(b)(iv) of the Policy, namely that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website. Such conduct amounts to bad faith.
The Complainant has established the third element 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, <budgetcanada.com> be transferred to the Complainant.
John Swinson Sole Panelist
Dated: March 31, 2010
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