Canadian Tire Corporation, Limited v. Mick McFadden

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE

PANEL DECISION

Canadian

Tire Corporation, Limited v. Mick McFadden

Case No.

D2001-0383

1. The Parties

Complainant is Canadian

Tire Corporation, Limited, a company incorporated under the laws of Ontario,

Canada, with its principal place of business at 2180 Yonge Street, P.O.

Box 770, Stn. K., Toronto, Ontario, M4S 2V9, Canada. Respondent is Mick

McFadden, Automotive Sort & Rework, 418-981 Wellington Rd. South, London,

Ontario, N6E 1Y8, Canada.

2. Domain Name and

Registrar

The domain name in

issue is <crappytire.com>.

Network Solutions,

Inc. (NSI), 505 Huntmar Park Drive, Herndon, VA 20170, U.S.A. is the registrar

for the domain name <crappytire.com>.

3. Procedural History

The WIPO Arbitration

and Mediation Center (the Center) received the complaint on March 16, 2001,

via email, and on March 20, 2001, in hard copy form. The Center verified

that the complaint satisfies the formal requirements of the ICANN Uniform

Domain Name Dispute Resolution Policy (the Policy), the Rules and the Supplemental

Rules. Complainant has made the required payment to the Center.

On March 21, 2001,

the Center transmitted via email to NSI, a request for registrar verification

in connection with this case. On March 23, 2001, NSI transmitted via email

to the Center, its Verification Responses, (1) confirming that the registrant

of the domain name is as stated above, (2) identifying the administrative

contact, (3) confirming that NSI's Version 5 Service Agreement

is in effect with respect to the domain names, and (4) stating that the

domain name is in ‘Active’ status.

The registrant of the

domain name according to Network Solutions, Inc. is: Mick McFadden, whose

address at the time of registration was Automotive Sort & Rework, 418-981

Wellington Rd. South, London, Ontario, N6E 1Y8, Canada.

On March 26, 2001,

the Center transmitted Notification of Complaint and Commencement of the

Administrative Proceeding, together with a copy of the Complaint, to the

Respondent via post, facsimile and email to the address identified in the

complaint and transmitted a copy by e-mail to the Complainant. The Center

advised that (1) the Response was due by April 14, 2001, (2) in

the event of default the Center would still appoint a Panel to review the

facts and to decide the case, (3) the Panel may draw such inferences from

Respondents’ default as it considers appropriate, (4) Complainant had elected

for the matter to be decided by a single panelist, (5) the fees for the

administrative proceeding will be paid in their entirety by Complainant

unless the Respondent chooses to have the case decided by a three-person

Panel, (6) the Panel will decide the case within 14 days of its appointment,

and (7) the Center can be contacted at postal and email addresses, a stated

telephone number and fax number.

On April 14, 2001,

the Respondent forwarded a Response to the Center by e-mail, fax and courier.

On April 17, 2001,

the Center forwarded an Acknowledgement of Receipt of Response to the parties

by e-mail.

On April 16, 2001,

the Complainant advised the Center by e-mail that it had received the Response

and inquired whether the Complainant will be given an opportunity to reply

to the Response. The Center advised the Complainant by e-mail on April 17, 2001,

that the Center accepts supplemental filings made by either party before

the appointment of the Administrative Panel, but it is at the Administrative

Panel’s sole discretion as to whether such information will be considered

in arriving at a decision.

On April 18, 2001,

the Complainant submitted the Complainant’s Supplemental material by e-mail

to the Center and to the Respondent.

On April 18, 2001,

the Respondent sent an e-mail to the Center inquiring of the time limits

by which he could file a further submission in response to Complainant’s

additional information. The Center advised the Respondent that the acceptance

of the additional information submitted by the Complainant will be decided

solely by the Panelist and also advised the Respondent that he could either

file directly additional material the acceptance of which would also be

decided by the panelist or he could file a request to the panelist to be

granted a turn for reply if the supplemental filing of the Complainant were

accepted. On April 19, 2001, the Respondent filed a request that if the

supplemental material submitted by the Complainant is accepted, the Respondent

should be granted an opportunity for rebuttal.

On May 14, 2001, the

Center transmitted to the parties via email Notification of Appointment

of Administrative Panel and Projected Decision Date. The notification advised

that Mr. Ross Carson had been appointed as the single panelist, and the

decision was due May 27, 2001. Also on May 14, 2001, the Center transmitted

the file in the case via e-mail and courier to Mr. Carson.

The Panel accepts Complainant’s

Supplemental material submitted April 18, 2001. The Panel does not deem

necessary to seek further information from the parties.

4. Factual Background

The Trademarks

Canadian

Tire is the registered owner of numerous Canadian trade mark registrations

for the trade mark CANADIAN TIRE in written form and in design format. Copies

of the trademarks are attached at Annex C to the Complaint. The registrations

owned by Canadian Tire include the following trade marks:

- Trade

mark registrations no. TMA279853 and TMA208904 CANADIAN TIRE, used in

Canada since at least as early as 1927 in association with automotive

parts, tools, accessories and maintenance and service supplies.

- Trade

mark registration no. TMA240380 CANADIAN TIRE & DESIGN used in Canada

since at least as early as 1942 in association with automotive parts,

tools, accessories and maintenance and service supplies.

- Trade

mark registration no. TMA208908 CANADIAN TIRE & DESIGN used in Canada

since at least as early as 1967 in association with automotive parts,

tools, accessories and maintenance and service supplies, and 1960 in association

with the operation of a gas bar.

- Trade

mark registration no. TMA208907 CANADIAN TIRE & DESIGN used in Canada

since at least as early as 1967 in association with automotive parts,

tools, accessories and maintenance and service supplies, and at least

as early as 1985 in association with the operation of a gas bar.

- Trade mark registration

no. TMA469998 CANADIAN TIRE Design used in Canada since November 1996

in association with the operation of a business dealing in the selling

of vehicular parts, tools and accessories of others; the selling of maintenance

and service supplies of others; the selling of hardware of others; the

selling of housewares of others; the selling of household goods of others;

the selling of sporting goods of others; and the servicing and maintenance

of vehicles.

- Trade mark registration

no. TMA477649 CANADIAN TIRE & Triangle Design used in Canada since

at least as early as August 1994 in association with the operation of

a business dealing in the selling of vehicular parts, tools and accessories

of others; the selling of maintenance and service supplies of others;

the selling of hardware of others; the selling of housewares of others;

the selling of household goods of others; the selling of sporting goods

of others; and the servicing and maintenance of vehicles.

- Trade mark registration

no. TMA491979 CANADIAN TIRE & TRIANGLE & RECTANGLE DESIGN used

in CANADA since June 1995 in respect of services.

- Trade mark registration

no. TMA386591 CANADIAN TIRE, used in Canada since May 1991 in association

with operating a gas bar.

- Trade mark registration

no. TMA395456 CANADIAN TIRE & Triangle Design used in Canada since

December 1991 in association with operating a gas bar.

- Trade mark registration

no. TMA402768 CANADIAN TIRE & Triangle Design used in Canada since

July 1992 in association with operating a gas bar.

- Trade mark registration

no. TMA291786 CANADIAN TIRE, used in Canada since March 1984 in association

with financial credit services.

5. Parties’ Contentions

A. Complainant

(1) The domain

name <crappytire.com> is identical or confusingly similar to

a trade mark in which the Complainant has rights; and

(2) The Respondent

has no rights or legitimate interests in respect of the domain name;

(3) The domain

name was registered and is being used in bad faith.

(1) Identical

or Confusingly Similar

Complainant submits

that Canadian Tire has continuously and extensively used the Canadian Tire

Trade Marks and has established a very valuable reputation and goodwill

in association with them.

Complainant refers

to the WIPO Arbitration and Mediation Center Administrative Panel decision

Canadian Tire Corporation, Limited v. 849075 Alberta Ltd. carrying on

business as Par5Systems, decided October 19, 2000, in which it was found

that the Canadian Tire Trade Marks are pervasive in Canada and that other

persons or entities would not choose identical or confusingly similar domain

names unless they were seeking to create an impression of an association

with Canadian Tire. A copy of the decision is attached Annexed [D] to the

Complaint.

Complainant submits

that Canadian Tire is also colloquially referred to or known as "Crappy

Tire". The term "Crappy Tire" is a slang expression derived

from the Canadian Tire trade marks. Generally, the usage does not have a

negative connotation but is an impertinent reference to a mass merchandiser.

Complainant searched the internet for the words "crappy tire canadian"

and resulted in 787 hits. Approximately 478 websites use these three words.

A large number of them use the phrase "Crappy Tire" in substitution

for "Canadian Tire". Copies of the printouts of these websites

are attached as Annex [E] to the Complaint.

Complainant also submits

that Canadian Tire is the registrant of the domain name <canadiantire.com>.

Canadian Tire operates its principal websites at <canadiantire.com>

and <canadiantire.ca> and can be found through other domain names.

Complainant advises

that there are over 430 associate Canadian Tire stores in Canada and 90%

of adult Canadians shop at Canadian Tire at least twice a year, while 40%

of Canadians shop at Canadian Tire every week. Complainant submits that

85% of the Canadian population lives within a 15 minute drive of a Canadian

Tire store. These stores collectively employ over 28,000 Canadians. Canadian

Tire’s annual catalogue is distributed to almost nine million households

in English and French.

Complainant submits

that Canadian Tire is frequently colloquially referred to or known as "Crappy

Tire" by the public. This trade mark has been derived from the Canadian

Tire trade marks and is distinctive of the Complainant. Complainant refers

to the discussion of this issue in The Law of Passing-Off,

by Christopher Wadlow, at pp. 354-355. Copies of the relevant pages from

this text book are attached as Annex [F] to the Complaint.

Complainant submits

that Respondent initially developed his website by copying selected pages

of the Canadian Tire website and substituting "Crappy Tire" for

"Canadian Tire". Copies of the printouts of these two websites

are attached as Annex [G] to this Complaint.

Complainant also refers

to cases decided in the courts of Ontario concerning infringement of a trade

mark. Complainant cites Source Perrier (Societe Anonyme) v. Fira-Less

Marketing Co. Ltd.(1983), 70 C.P.R. (2d) 61 (F.C.T.D.) in which a judge

of the Federal Court of Canada found that the plaintiff had established

a prima facie case of infringement relating to its "PERRIER"

trade marks when the defendant used the words "Pierre Eh!", a

reference to the then Prime Minister of Canada.

Complainant also cites

a trade mark opposition, case in which a Hearing Officer found that the

proposed trade mark "THE TORONTO SOK EXCHANGE" was not distinctive

because it was confusing with the mark "THE TORONTO STOCK EXCHANGE".

Complainant further

cites the case of Natural Footwear Ltd. et al v. Schwarz, (1986),

12 C.P.R. (3d) 84 (Ont. H.C.) concerning the trade mark "ROOTS"

& representation of a beaver. The defendant used the trade mark "ROTS"

in association with a parody of a beaver. The court concluded that a strong

prima facie case of passing-off had been made out.

Copies of reports of

these cases are attached as Annex [H] to the Complaint.

Complainant cites United

States cases where relief was granted to prevent the use by defendants of

a domain name similar to a trade mark of the plaintiff in circumstances

where the motive of the defendant was to denigrate the plaintiff. Copies

of People for the Ethical Treatment of Animals, Inc. v. Michael T. Doughney,

June 12, 2000 (E.D. Va.) and Planned Parenthood Federation of America,

Inc. v. Richard Bucci, March 24, 1997 (S.D. N.Y.) are attached

as Annex [I] to the Complaint.

Complainant submits

that parody or spoof of CRAPPY TIRE is part of the Uniform Domain Name Dispute

Resolution Policy since paragraph 4(c)(iii) makes reference to an intention

to tarnish a trade mark.

(2) Rights or Legitimate

Interests

Complainant

submits that Canadian Tire Trade Marks have been so pervasive in Canada

since 1927, that other persons or entities would not legitimately choose

identical or confusingly similar names unless they were seeking to create

an impression of an association with Canadian Tire.

Complainant

submits that due to the close association of the colloquialism or slang

expression "Crappy Tire" with Canadian Tire, Respondent is attempting

to create an impression of an association with Canadian Tire.

Complainant

submits that it has not licensed or otherwise permitted the Respondent to

use any of its trade marks, nor has it licensed or otherwise permitted the

Respondent to apply for or use the domain name in dispute <crappytire.com>.

(3) Registered and

Used in Bad Faith

Complainant submits

that the domain name in dispute <crappytire.com> was acquired primarily

for the purpose of selling, renting, or otherwise transferring the domain name

registration to Canadian Tire for valuable consideration in excess of Respondent’s

out-of-pocket costs directly related to it. Complainant submits that the domain

name in dispute is listed for sale at $85,000 at the website www.greatdomains.com.

Copies of the printouts from this website are attached as Annex [J] to the Complaint.

Complainant

submits that the Respondent has used his website to make rude, untrue and

libellous statements about Canadian Tire in an attempt to force Canadian

Tire to pay an exorbitant sum of money for the transfer of the domain name

in dispute. Complainant submitted a copy of a page from Respondent’s website

as seen in Annex [K] which included the following statement in hidden text:

"Canada’s

leading rip off artist offering customers the convenience of four rip offs

under one roof of automotive, sports, leisure and home products."

Complainant

submits that the HTML code making up the site included the following key

words in the form of meta tags:"Crappy Tire, Really Crappy Tires, Crappy

Tire Corporation, Crappy Tire Store, Crappy Tire Associate Store" Canadian

Tire Corporation, Limited, Crappy Tire Retail, Crappy Tire Petroleum, Crappy

Tire Acceptance, eflyer, Automotive, Sports, Leisure, Hardware, Housewares,

Home Improvement, Source Canada, tools, power tools, AquaQuest, Stay Alert…Stay

Safe, Cycle Safe, Junkmaster, CrappyCraft, Auto Club, credit card, mastercard,

plumbing, stamps, ‘money’, coupons, money machine, Bob Izumi, Outdoors Club,

Hoop It Up, CASCAR, Team Crappy Tire, Canada Day, Automotive, sports, hardware,

home, auto service, car service, car repair, hardgoods, retailer, Canada,

racing, fishing, NBA, sports and leisure, home products".

Complainant

submits that after complaints were made to the Respondent the website was

modified to remove the name Canadian Tire from the meta tags and to delete

the statements from this site. The current form of the Respondent’s website

is described as currently unavailable. A copy of this page is attached as

Annex [L] to the Complaint.

Complainant states

that the Respondent has used the domain name <crappytire.com> in a

manner demonstrating bad faith.

Complainant cites WIPO

Arbitration and Mediation Center Administrative Panel decision World

Wrestling Federation Entertainment, Inc. v. Michael Bosman decided January

14, 2000, in which it was found that the offer to sell a domain name in

such a manner constituted use of the domain name in bad faith as defined

in the Policy. A copy of this case is attached as Annex [M] to the Complaint.

Complainant cites WIPO

Arbitration and Mediation Center Administrative Panel decision Walmart

Stores, Inc. v. Walsucks and Walmarket Puerto Rico, decided July 20, 2000,

in which it was found that a demand for payment relating to a critical site

is fundamentally inconsistent with the right of free expression. A copy

of this case is attached as Annex [N] to the Complaint.

Complainant submits

that subjecting the Complainant’s trade mark to ridicule or attack is not

compatible with the function of a trade mark and not a denial of any Charter

rights. Complainant enclosed a copy of Cie Générale des

Établissements Michelin-Michelin & Cie v. C.A.W. – Canada et

al., (1996) 71, C.P.R. (3d) 348 (F.C.T.D.) as Annex [O] to the Complaint.

B. Respondent

(1) Identical or

Confusingly Similar

Respondent submits

the Complainant shows that Canadian Tire Corp. owns many trade marks. None

of these are the domain name in question, <crappytire.com>. Respondent

submits that this issue is not covered by the Uniform Domain Name Dispute

Resolution Policy.

Respondent refers to

Complainant’s submission that in a previous decision by WIPO, "it was

found that the Canadian Tire Trade Marks are pervasive in Canada and that

other persons or entities would not choose identical or confusingly similar

domain names unless they were seeking to create an impression of an association

with Canadian Tire". Respondent submits that the previous decision

does not apply in any way to this case as the name in question is not confusingly

similar in any way.

Respondent inquires

"since when is the word "Canadian" interchangeable with or

similar to "crappy""?

Respondent submits

that since the Complaint does not conform to all three requirements of the

policy paragraph 4 (a) he requests an immediate finding of reverse highjacking.

Respondent advises

he will not dispute the fact that Canadian Tire Corporation is colloquially

referred to as Crappy Tire. Respondent submits that the vast majority of

references located in Complainant’s internet search are made to "crappy

products". Respondent refers to the statement in the Complainant which

states that a large number of them did use "Crappy Tire" in substitution

of Canadian Tire. Respondent advises that that number is actually around

10% if only the words "crappy tire" are searched instead of the

words "Canadian, crappy and tire". Respondent submits that since

<crappytire> is the name in question and not "Canadian crappy

tire", Complainant’s statement is an attempt to manipulate the facts.

Respondent submits that using the term "crappy tire" on google.com

6,380 results were found on April 13, 2001. Also, the vast majority of returns

were for references to "tires" that were "crappy" and

had nothing to do with Canadian Tire. Respondent did not attach copies of

the search results but advises that the results are readily available online.

Respondent submits

that Complainant’s remark "that this trade mark has been derived from

Canadian Tire trade marks and is distinctive of the complainant" is

a blatant lie. Respondent submits that the term <crappytire> is not

trademarked "and if anyone has a right to the trademark it is I who

first used it in a commercial fashion". Respondent advises that he

has over 75 domain names, some of which have been developed. Respondent

submits that he "spent $80,000 developing citybycity.com (trademarked

name) only to run out of money and having to shut down all his sites because

of lack of funding. Respondent submits he spent his entire life savings

and borrowed another 30,000 dollars.

Respondent advises

that he owns mad4u.com which is a planned dating / singles website. He owns

nastybugs.com, jetdive.com, trafficmarkingservices.com. and drugbasics.com.

"I have every intention of developing websites on all of these sites.

Mbula.com was a pet adoption site and mickmcfadden.com is a personal site."

Respondent submits

that the reference to the text book "The Law of Passing Off" as

stated in the Complaint is irrelevant.

Respondent denies Complainant’s

allegation that he developed his website operated under the domain name

<crappytire.com> by copying selected pages from the Complainant’s

website. Respondent advises that he looked at those pages and made them

similar in format but content and wording were completely changed.

Respondent refers to

the most recent case of walmartcanadasucks.com vs. Walmart Canada

in which the judge found in favor of sucks.com, the owner of the domain

name. Respondent also refers to a recent precedent-setting U.S. court case,

brought against the owner of ‘lucentsucks.com' by Lucent Technologies, in

which Judge Brinkema ruled that the owner of "lucentsucks.com' did not violate

trademark law or the provisions of the U.S. Anti-Cybersquatting Consumer

Protection Act, and subsequently was permitted to keep his domain name.

Respondent quotes from the ruling of the presiding Judge Brinkema "The likelihood

of confusion is a key element when determining whether trademark infringement

or dilution has occurred. The average consumer would not confuse ‘lucentsucks.com'

with a Web site sponsored by the plaintiff. Registering domain names in

the form of [company name] sucks.com to provide a forum for critical commentary

is not uncommon, and is part of an Internet phenomenon known as ‘cybergriping.'"

Respondent submits that this decision applies to this case directly and

as such this information alone should be cause enough for a finding of reverse

high jacking on the part of Canadian Tire Corp.

Respondent submits

that Complainant’s attorneys contacted him and asked for a penalty to be

paid by him for damages and the name to be signed over to them. (Annex "A"

to Response.) Respondent advises they also asked him to remove the site

"as an act of good faith" until the dispute is resolved. Respondent

advises he did immediately, under threat of suit. Respondent submits that

Complainant’s attorneys contacted him initially about acquiring the domain,

and Respondent has stated that the domain is not for sale to them. He would

sell it to someone else as long as the sale price was fair market value.

He would sell almost any of his domains in order to raise funding for development

of other domains.

(2) No Rights

or Legitimate Interests in the Domain Name

Respondent submits

that a copy of his initial development plan for his website at <crappytire.com>

was enclosed with the Complaint.

Respondent submits

that it is a legitimate website, he planned a message board for "cyber-griping"

to enhance the website, but was set back by the threatened lawsuit. Respondent

attached as annex "A" a copy of the letter from the solicitor

for Canadian Tire which was sent to him by e-mail and courier on March 9,

2000.

(3) Domain Name Registered

and Used in Bad Faith Respondent

submits that the statement that the domain name in dispute was acquired for the

purpose of selling, renting or transferring is not substantiated in any way. Respondent

submits that the site that was developed on this domain proves this statement

is untrue. Respondent advises that all his domains are listed for sale but he

will not sell them for the first offer that comes along. Respondent advises that

he intends to develop them "and the development is worth more than the offer".

Respondent submits

that Complainant has not substantiated the statement "after various complaints

were made to the respondent". Respondent advises that there are no letters

to support the allegation that various complaints were made to the Respondent.

Respondent advises that he "took the site down right away (March 10,

2001) after receiving the attached email– annex "A". (under threat

of suit)."

Respondent submits

that he did not offer to sell Complainant the domain. He advises Complainant

contacted him, wanting to take it away from him.

Respondent wishes to

have it on record that he feels he was not given enough time for the response.

The plaintiff had over a year to prepare and he had only 20 days. Respondent

submits that this obviously slants decisions in favor of plaintiffs and

he feels this time period should be expanded to a fair length of time.

Finally Respondent

submits that this case should be decided before a court, not WIPO as it

does not meet the guidelines.

Further Submissions

by Complainant

In its further submissions

dated April 18, 2001, the Complainant denies the various points made by

the Respondent.

Complainant attaches

copies of the decisions in WIPO Arbitration and Mediation Center Administrative

Panel decision Wal-Mart Stores, Inc. v. Wallmartcanadasucks.com and Kenneth

J. Harvey, decided November 23, 2000, and Lucent Technologies, Inc.

v. Lucentsucks.com, May 3, 2000 (E.D. Va) as Annex [A] to this Supplemental

material. Complainant submits that the reference made by the Respondent

to the Lucent case is not accurate nor was a final finding made on

the issue of confusion.

Complainant submits

a complete copy of the letter of March 8, 2000, marked as Annex [A] to the

Response. Complainant denies it asked the Respondent to remove the site

"as an act of good faith". Complainant submits that it has not

directly or indirectly contacted the Respondent with respect to acquiring

the domain name in issue.

6. Discussion and Findings

The Panel has reviewed

the Complaint, the Response and the Complainant’s Supplementary Submissions.

According to paragraph

4(a) of the Policy, the Complainant must prove that

(i) The 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 interest in respect of the

Domain Name; and

(iii) The

Domain Name has been registered and is being used in bad faith.

Identical or confusing

similarity to a trademark or service mark.

The Complainant has

not alleged or filed proof of any use of the words "CRAPPY TIRE"

by the Complainant as a trademark or service mark used to distinguish the

goods or services of the Complainant from those of others.

In paragraph 7 of the

Response the Respondent submits that while Canadian Tire owns many trademarks

for or including Canadian Tire, none of the registered trademarks are for

or include CRAPPY TIRE.

Section 4(a)(i) of

the Uniform Domain Name Dispute Resolution Policy does not apply to a dispute

between corporate or business names not used in association with wares or

services by the Complainant and a domain name.

The trademark CRAPPY

TIRE is not in fact used by the Complainant as a trade name or business

name but is a slang expression applied by younger customers to the place

of business or the business of Canadian Tire stores or business.

The Complainant attached

as Annex F pages 354 and 355 from The Law of Passing-Off, by Charles

Wardlaw, relating to spontaneous public adoption of a name, mark or get

up which become distinctive of the plaintiff’s goods. However, based on

the submissions and evidence in the Complaint the spontaneous use of CRAPPY

TIRE by the public is as a trade name or corporate name and not as a trademark

or service mark.

On April 12, 2001,

WIPO made available to the public an Interim Report of the Second WIPO Internet

Domain Name Process entitled The Recognition Of Rights And The Use of Names

In The Internet Domain Name System. Paragraphs 287 to 330 relate to possible

extension of dispute resolution to trade names. Although it is recognized

that the Interim Report contains only preliminary recommendations on which

further comments are sought, at paragraph 322 it is concluded: "It

is not recommended that a special procedure for the protection of trade

names against abusive registration and use as domain names be established

at this stage through modification of the UDRP." It remains to be seen,

of course, whether this recommendation will remain unaltered in the Final

Report, expected to be published in the summer 2001.

The law with respect

to passing off extends to businesses as well as trademarks or service marks.

The Uniform Domain Name Dispute Resolution Policy does not extend to business

names not associated with wares at the time of sale or used in association

with the advertisement of services.

The Complainant referred

to a previous WIPO Arbitration and Mediation Center Administrative Panel

decision Canadian Tire Corporation, Limited v 849075 Alberta Ltd. carrying

on business as Par5Systems. A copy of the decision was attached as Annex

D. The domain names in dispute were <ecanadiantire.com> and <e-canadiantire.com>.

However, in that case there was evidence of extensive use of CANADIAN TIRE

in association with wares and services. In this case there is no evidence

of use of CRAPPY TIRE by the Complainant in relation to wares and services.

The use of CRAPPY TIRE is used spontaneously by certain customers as a substitute

business name for the Complainant. The decision in this case relates to

a different word, a different domain name and different submission and evidence.

The Panel finds that

the Complainant has failed to establish that the Complainant has rights

in the trademark or service mark CRAPPY TIRE in Canada. The Complainant

therefore failed to prove a required element under Paragraph 4.a.(i) of

the Policy. The Panelist makes no finding with respect to trade names, passing

off or other areas of unfair competition not covered by the Policy.

Rights or Legitimate

Interests; Registered and Used in Bad Faith

Given the finding under

the previous heading that the Complainant has failed to establish that the

domain name in dispute is identical or confusingly similar to a trademark

owned by the Complainant, the Panel makes no finding with respect to the

issues in paragraphs 4.a.(ii) and (iii) of the Policy.

7. Decision

The Complaint is dismissed.

Ross Carson

Sole Panelist

Dated: May

24, 2001

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