Solar Turbines Incorporated v. Harry Bradly
Claim Number: FA1912001873698
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie H Bald of Kelly IP, LLP, District of Columbia. Respondent is Harry Bradly (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solraturbines.us>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 3, 2019; the Forum received payment on December 3, 2019.
On December 6, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <solraturbines.us> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On December 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@solraturbines.us. Also on December 9, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On January 5, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Solar Turbines Incorporated, uses the SOLAR TURBINES and SOLAR marks to identify with its design and manufacture of industrial gas turbines and turbomachinery packages for use in the oil and gas and power generation industries.
Complainant has registered the SOLAR mark with the United States Patent and Trademark Office (“USPTO”) and has registered the SOLAR TURBINES mark in Algeria, Mexico, and Brunei (e.g., Mexican Reg. No. 1,332,695, registered Nov. 24, 2011), which demonstrates its rights in the mark. Complainant also has common law rights in the SOLAR TURBINES mark.
The <solraturbines.us> domain name is confusingly similar to the SOLAR TURBINES mark as the domain name incorporates the mark in its entirety, merely transposing the letters “a” and “r”, and adding the “.us” country-code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <solraturbines.us> domain name. Respondent is not licensed or authorized to use Complainant’s SOLAR TURBINES or SOLAR marks and is not commonly known by the domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a website that displays pay-per-click hyperlinks that reference various competing websites in the energy industry.
Respondent registered and uses the <solraturbines.us> domain name in bad faith. Respondent has engaged in a pattern of bad faith registration. Additionally, Respondent uses the disputed domain name attract Internet users to its website and commercially benefit via sponsored pay-per-click links. Respondent also attempts to disrupt Complainant’s business by diverting Internet users looking for Complainant’s products and profiting from click-through links that reference competing websites. Finally, Respondent had actual knowledge of Complainant’s rights in the SOLAR TURBINES and SOLAR marks prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the SOLAR TURBINES mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at-issue domain name after Complainant acquired rights in SOLAR TURBINES.
The at-issue domain name addresses a website that displays pay-per-click hyperlinks some referencing various products and services that may compete with Complainant in the energy industry.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f) 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has multi-national trademark registrations for its SOLAR TURBINES trademark. Any one of such registrations is sufficient to demonstrate Complainant’s rights in the SOLAR TURBINES mark under Policy ¶ 4(a)(i). See PineBridge Investments IP Holdings Limited v. uche victor, FA 1551301 (Forum May 6, 2014) (finding that Complainant’s registrations for the PINEBRIDGE mark with the USPTO, as well as the MIIP were sufficient to establish rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <solraturbines.us> domain name contains Complainant’s <solraturbines.us> trademark less its domain name impermissible space with its “a” and “r” transposed, all followed by the country code top-level domain name “.us”. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <solraturbines.us> domain name from the SOLAR TURBINES trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <solraturbines.us> domain name is confusingly similar to Complainant’s SOLAR TURBINES trademark. See RetailMeNot, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1625879 (Forum Aug. 6, 2015) (finding confusing similarity while Respondent merely transposed the letters “a” and “t” in the RETAILMENOT mark in crafting the <reatilmenot.com> domain name.); see also Wicked Weasel Pty Ltd v. Kulich / GS, FA 1604785 (Forum Apr. 23, 2015) (finding, “The addition of a ccTLD to a registered trademark is not sufficient to overcome a finding of confusing similarity under a Policy ¶4(a)(i) analysis.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Harry Bradly” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <solraturbines.us> domain name. The Panel therefore concludes that Respondent is not commonly known by the <solraturbines.us> domain name for the purposes of Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name).
Additionally, Respondent uses its <solraturbines.us> domain name to address a website to display pay-per-click links. Some of these links even reference products and services in the energy industry and thus may compete with Complainant. Respondent’s use of the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent uses the at-issue domain name to address a website displaying links to Complainant’s competitors. Respondent’s use of the <solraturbines.us> domain name in this manner shows Respondent’s bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”).
Next, Respondent has previously registered Complainant’s trademark in a confusingly similar domain name which resulted in a recent UDRP decision adverse to Respondent, i.e. See Solar Turbines Inc. v. Harry Bradly, FA 1870489 (Forum Dec. 9, 2019). Respondent’s prior cybersquatting indicates a pattern of such activity on Respondent’s part. Therefore, Respondent’s bad faith is suggested in the instant dispute under Policy ¶ 4(b)(ii).
Furthermore, Respondent’s overt misspelling of Complainant’s trademark in the at-issue domain by reversing two of the mark’s letters shows that Respondent is engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name hoping that internet users will either: 1) inadvertently type the malformed string when searching for products or services related to the domain name’s target trademark; and/or 2) in viewing the domain name will confuse the domain name with its target trademark. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent had actual knowledge of Complainant’s rights in the SOLAR TURBINES mark when it registered <solraturbines.us> as a domain name. Respondent’s actual knowledge is evident from its incorporation of an obvious misspelling of Complainant’s well-known trademark into the at-issue domain name, as well as from Respondent’s prior use of Complainant’s mark in a domain name that was the subject of a prior UDRP decision adverse to Respondent as discussed above. See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”). Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <solraturbines.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 5, 2020
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