In another horribly lazy opinion, the domain name NiceCar.com was just awarded to NICE CAR, INC. by a one member UDRP panelist Sandra J. Franklin to a trademark holder.
Although the complainant had a federal trademark it was only registered in 2007 while the domain holder owned the domain for 13 years.
The panelist which never said one word about the generic nature of the term, Nice Car, awarded the domain based on the finding that the “Complainant has established secondary meaning in the NICE CAR mark, dating back to 1975, prior to the registration of the disputed domain name.”
I guess no one has ever uttered the phrase that someone has a nice car before the complaintant came up with it in 1975.
What a joke.
Instead of viewing the ownership of the domain name for 13 years and the non-action of the trademark holder to support the rights of the domain holder, the panelists found the domain holder showing “no demonstrable preparations to use the disputed domain name in 13 years, further evidence that Respondent has not made a bona fide offering or a legitimate use under Policy “The domain holder did not respond to the UDRP.
Here are the relevant facts and findings by the panel:
“Complainant owns a federal trademark registration with the United States Patent and Trademark Office (“USPTO”) for its NICE CAR mark (Reg. No. 3,205,109 registered Feb. 6, 2007).
“Complainant has used the NICE CAR mark for vehicle repair services since 1975, and for motor vehicle sales since 1984.”
“The Panel finds that Complainant’s registration of the NICE CAR mark with the USPTO is sufficient to confer rights in the mark under Policy ¶ 4(a)(i).
“Complainant also argues that it has been using the mark in relation to its motor vehicle business since about 1975, decades before Respondent’s registration of the disputed domain name.”
The Panel finds that, based on the entire record, Complainant has established secondary meaning in the NICE CAR mark, dating back to 1975, prior to the registration of the disputed domain name.”<
“Complainant also alleges that Respondent has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name, and thus fails to establish rights under Policy”
“Complainant notes that Respondent has simply been offering the domain name for sale since at least February 2003. ”
“This is evidence of Respondent’s lack of rights or legitimate interests in the disputed domain name. “
“Complainant also claims that Respondent has made no demonstrable preparations to use the disputed domain name in 13 years, further evidence that Respondent has not made a bona fide offering or a legitimate use under Policy “
Respondent has demonstrated bad faith registration and use under Policy ¶ 4(b)(i) by acquiring the disputed domain name primarily for the purpose of selling it to Complainant for valuable consideration in excess of Respondent’s documented out-of-pocket costs related to the domain name.
“Complainant states that Respondent is offering to sell the <nicecar.com> domain name for $100,000, an amount that surely exceeds respondent’s costs of maintaining the disputed domain name.”