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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

DaimlerChrysler Corporation v. Brad Bargman

Case No. D2000-0222

 

1. The Parties

Complainant is DaimlerChrysler Corporation, a corporation organized under the laws of the state of Delaware, with its principal place of business located at 800 Chrysler Drive East, Auburn Hills, Michigan, 48326. Respondent is Brad Bargman, an individual whose address is 4630 N. University Drive, Coral Springs, Florida, 33067.

 

2. The Domain Name and Registrar

The domain name at issue is DODGEVIPER.COM (the "Domain Name"). The registrar of the Domain Name is Network Solutions, Inc. ("NSI").

 

3. Procedural History

On March 28, 2000, Complainant submitted its Complaint, with the required filing fee for a single-member Panel, to the World Intellectual Property Organization ("WIPO") Arbitration and Mediation Center (the "WIPO Center").

On April 4, 2000, WIPO completed a Formal Requirements Compliance Checklist. The Panel has independently determined and agrees with WIPO’s assessment that the Complaint is in formal compliance with the requirements of Uniform Domain Name Dispute Resolution Policy ("UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and WIPO’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy.

On March 29, 2000, WIPO sent a Request for Registrar Verification via email to NSI. On April 3, 2000, NSI confirmed via email to WIPO that the Domain Name is currently registered to Respondent and is in "active" status. NSI further confirmed that Respondent’s registration of the Domain Name is subject to the UDRP. On March 29, 2000, WIPO sent an Acknowledgment of Receipt to Complainant, and copied Respondent. On April 4, 2000, WIPO sent a Notification of Complaint to Respondent. On April 24, 2000, Respondent filed its timely Response with WIPO, and on May 5, 2000, WIPO sent its Acknowledgment of Receipt of Response.

Additional correspondence related to administrative matters is as follows. On March 31, 2000, Respondent asked WIPO if it would be sending a notice of a complaint regarding the Domain Name. On March 31, 2000, WIPO re-sent the Acknowledgment of Receipt, and confirmed that the Complaint would be sent contingent upon WIPO’s compliance review. On March 31, 2000, Respondent provided a postal mailing address and facsimile number to WIPO. On April 4, 2000, Respondent asked WIPO to confirm the deadline for his response. On April 6, 2000, Respondent requested another copy of the Complaint. On April 7, 2000, WIPO sent Respondent copies of the Complaint in three separate formats. On April 8, 2000, Respondent wrote to WIPO that he had not yet received the Complaint. On April 10, 2000, WIPO asked Respondent to inform WIPO which format would be acceptable, and noted that Respondent would have received the hard copy of the Complaint. On April 10, 2000, WIPO re-sent a copy of the Complaint via email to Respondent. On April 11, 2000, WIPO re-sent the Notification of Complaint via email to Respondent. On April 25, 2000, Respondent sent WIPO a request for verification that WIPO had received his response. On May 5, 2000, Complainant requested a copy of the Response. On May 7, 2000, WIPO sent a copy of the Response to Complainant.

On May 15, 2000, WIPO sent to Complainant and Respondent a Notification of Appointment of Panel, appointing David M. Kelly as Panelist and scheduling May 29, 2000 as the date for issuance for the Panel’s decision.

The language of the proceeding is English.

 

4. Factual Background

In support of its Complaint, Complainant submitted copies of the following U.S.Trademark Registrations:

a) No. 1,409,844 for the mark DODGE, with Chrysler Corporation as the listed owner;

b) No. 364,669 for the mark DODGE, with DaimlerChrysler Corporation as the listed owner;

c) No. 569,431 for the mark DODGE, with Chrysler Corporation as the listed owner;

d) No. 1,189,233 for the mark DODGE, with Chrysler Corporation as the listed owner; and

e) No. 1,800,654 for the mark VIPER, with Chrysler Corporation as the listed owner.

Complainant also submitted 6 specific pages of a Notice of Recordation, the full length of which is unknown, from the U.S. Patent and Trademark Office, showing that the above registrations were assigned to DaimlerChrysler Corporation.

Since 1914, Complainant and its predecessors have adopted and continuously used the mark DODGE in connection with: automobiles, trucks, vans and structural parts therefor; automobile, truck, and van dealership services; and automobile, truck, and van repair and maintenance services. These products and services are advertised and promoted through a wide range of media, including online, and are sold throughout the United States. Among the models of automobiles marketed and sold in connection with the DODGE mark is the VIPER automobile, which Complainant introduced for marketing purposes in 1989. Complainant and its predecessors have marketed and promoted DODGE VIPER automobiles using a combination of the divisional brand DODGE and the model brand VIPER since that time and have sold DODGE VIPER automobiles to the public since 1992.

Respondent registered the Domain Name on September 24, 1996. Respondent operates a website associated with the Domain Name that Respondent describes as a "forum for Viper owners and enthusiasts."

 

5. Parties’ Contentions

A. Complainant

Complainant alleged that Respondent was aware that Complainant was the owner of the DODGE and VIPER marks prior to his registration and use of the Domain Name.

Complainant alleged that Respondent is intentionally attracting, for commercial gain, to attract Internet users to his website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website or of its products and services. Complainant alleged that Respondent has profited from his website by allowing others to place advertisements on it in exchange for consideration.

Complainant alleged that the content of Respondent’s website causes confusion because it: a) touts itself as the "Official Home Page" for VIPER; b) prominently features Complainant’s federally registered VIPER head design mark; c) utilized Complainant’s VIPER design mark in the background of certain pages; d) pictured a VIPER automobile; e) listed VIPER automobiles for sale; and f) provided a deep link to Complainant’s website.

Complainant alleged that Respondent sought to sell the Domain Name to Complainant and to others for an amount in excess of his out-of-pocket costs associated with the Domain Name. Complainant alleged that in 1998, Respondent approached a representative of Complainant and offered to sell the Domain Name, but did not provide any documentation to evidence this communication. On or about March 20, 2000, Complainant learned that Respondent was offering the Domain Name for sale by auction on eBay. Complainant provided as an exhibit a printout of Respondent’s auction from the eBay website. When Complainant’s counsel notified Respondent of Complainant’s intent to file an action to seek the transfer of the Domain Name, Respondent offered to sell it for $10,000.

B. Respondent

Respondent is the owner of a Dodge Viper automobile, and has operated a website at the Domain Name since 1996 with the intent of offering advice and a forum for Viper owners and enthusiasts.

Respondent has received 3 million hits to his website since 1996, has answered thousands of emails, and has sent Viper gifts to Viper enthusiasts.

Respondent has received an approximate total of $1,238.00 in exchange for the placement of three advertisements on the website. His costs for setup and ISP charges was over $8,500, so he has not profited off the marks of Complainant, instead losing over $7,000.

Respondent had the title "Dodgeviper.com official home page" on his website, but has since changed it to add disclaimers that he has seen on other websites.

Respondent noted, without supplying evidence, that Complainant’s Viper Magazine featured his website on two occasions.

Respondent acknowledges that he placed the Domain Name for sale by auction on eBay, in an effort to recoup his costs.

Respondent emphasizes that his website is an enthusiast’s site, and that he does not profit off the Complainant’s marks.

 

6. Discussion and Findings

Paragraph 4(a) of the UDRP directs that the complainant must prove each of the following: (1) that 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, (2) that the respondent has no rights or legitimate interests in respect of the domain name; and, (3) the domain name has been registered and used in bad faith.

The Domain Name is identical to the name of one of Complainant’s products, the DODGE VIPER automobile, and is confusingly similar to Complainant’s marks DODGE and VIPER.

Because Respondent uses the Domain Name for a fan website, there is a potential issue of nominative fair use. It is unquestionable, however, that Internet users frequently associate a domain name comprised of a trademark with the particular company that produces or offers goods and/or services under that mark. This is particularly true where as here the Domain Name consists of two different trademarks that together form the brand name for a well-known product. Respondent’s recent addition of a disclaimer does not counter that expectation. Disclaimers are not always read or understood, and potential customers may not notice or appreciate Respondent’s disclaimer. More fundamentally, Respondent’s disclaimer, "Fan Appreciation Page," will not prevent a likelihood of confusion because it is not part of the Domain Name itself. Had Respondent registered and used a "dodgeviper"-formative domain name that on its face clearly indicated the fan appreciation nature of the site, the result might be different.

Furthermore, Respondent’s recent removal of the title "Dodgeviper.com Official Home Page" and addition of a disclaimer does not dispel the fact that Respondent has used the Domain Name for commercial purposes. Respondent’s sale of advertisements constitutes commercial use, regardless of whether Respondent made a profit or showed a loss.

Alone, Respondent’s picture of a DODGE VIPER automobile does not create the impression of any endorsement by or affiliation with Complainant, and the Panel did not locate any indication on Complainant’s exhibit that Respondent’s website offered these automobiles for sale. However, Respondent’s use of the title "Dodgeviper.com Official Home Page" in conjunction with the deep link to Complainant’s website would have given consumers the impression that Complainant endorsed, sponsored, or was otherwise affiliated with Respondent’s website and the products and services offered on his website.

Respondent has not made a legitimate, noncommercial or fair use of the Domain Name, so the Panel finds that Respondent does not have rights or legitimate interests in respect of the Domain Name. The Panel further finds that Respondent has used the Domain Name in bad faith pursuant to Paragraph 4(b)(iv) of the UDRP, in that Respondent has ". . . intentionally attempted to attract, for commercial gain, Internet users to your website 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."

Paragraph 4(b)(i) of the UDRP provides that "the following circumstances . . . shall be evidence of the registration and use of a domain name in bad faith: . . . 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 . . . for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name."

The Panel notes that Respondent did not document his costs of $8,500, nor did Complainant document the initial offer of sale. In his Response, Respondent did not refute Complainant’s allegation that he offered to sell the Domain Name to Complainant, for a second time, for $10,000. With regard to offering the Domain Name for sale by auction on eBay, Respondent explained that he was trying to recoup his costs. Respondent did not disclose the reserve, or minimum purchase price, that he set on the auction. eBay auctions do not end when the reserve is met, but instead continue through the designated period of time, ending with the sale of the item to the highest bidder. Therefore, the Panel finds bad faith in Respondent’s offer to sell the Domain Name at auction for valuable consideration in excess of his out-of-pocket costs related to the Domain Name.

 

7. Decision

The Panel decides that (1) the Domain Name registered by Respondent is identical to the name of Complainant’s product, DODGE VIPER, and confusingly similar to Complainant’s marks DODGE and VIPER, (2) that Respondent has no rights or legitimate interests in respect of the Domain Name, and (3) that the Domain Name has been registered and used in bad faith.

Therefore, the Panel requires that the domain name DODGEVIPER.COM be transferred to DaimlerChrysler Corporation, Complainant.

 


 

David M. Kelly
Presiding Panelist

Dated: May 29, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0222.html

 

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