Haas Automation, Inc. v. CNCPros.net a/k/a Brian Denny
Claim Number: FA0905001263151
PARTIES
Complainant is Haas Automation,
Inc., (“Complainant”) represented by Farah
P. Bhatti, of McDermott Will &
Emery LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <haascnc.us>,
registered with Godaddy.com, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On
On May 26, 2009, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of June 15, 2009 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules
for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On
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. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any
rules and principles of law that the Panel deems applicable, without the
benefit of any Response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <haascnc.us> domain name is confusingly similar to Complainant’s HAAS mark.
2.
Respondent does not have any rights or
legitimate interests in the <haascnc.us> domain name.
3.
Respondent registered and used the <haascnc.us>
domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Haas Automation, Inc., has been
active in the market of computer numerically controlled (CNC) machines for over
twenty-five years. Complainant is the
owner of the HAAS mark, registered with the United States Patent and Trademark
Office (“USPTO”) (i.e. Reg. No. 2,579,776 issued
Respondent registered the <haascnc.us>
domain name on
DISCUSSION
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.”
In view of
Respondent's failure to submit a Response, the Panel shall decide this
administrative proceeding on the basis of the 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 (Nat. Arb.
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.”).
Paragraph 4(a) of the Policy requires that the 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 the
Respondent is identical or confusingly similar to a trademark or service mark
in which the Complainant has rights; and
(2) the 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.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
The Panel finds that Complainant’s
registration of the HAAS mark with the USPTO adequately confers sufficient
rights in the mark upon Complainant pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum
Complainant argues
that Respondent’s <haascnc.us> domain name is confusingly similar to its
HAAS mark. The disputed domain name
contains Complainant’s HAAS mark in its entirety with the addition of the descriptive
acronym “cnc” and the country-code top-level domain (“ccTLD”) “.us.” The Panel finds that the addition of the
acronym “cnc” to Complainant’s mark, which has an obvious relationship to
Complainant’s business in computer numerically controlled machinery, fails to
sufficiently differentiate Respondent’s domain name from Complainant’s HAAS mark. Additionally, the Panel finds that the
addition of the ccTLD “.us” is irrelevant under Policy ¶ 4(a)(i). See Lifetouch, Inc. v. Fox
Photographics, FA 414667 (Nat. Arb. Forum
Complainant has satisfied Policy ¶ 4(a)(i).
Rights
or Legitimate Interests
Complainant has asserted that
Respondent lacks rights and legitimate interests in the disputed domain
name. Once Complainant presents its prima facie case that Respondent has no
rights or legitimate interests with respect to the disputed domain name, the
burden shifts to Respondent to provide “concrete evidence that it has rights to
or legitimate interests in the domain name at issue.” See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO
There is no evidence in the record to conclude that Respondent owns any
service marks or trademarks that reflect the <haascnc.us> domain
name. Therefore the Panel finds that
Respondent does not have rights and legitimate interests in the disputed domain
name pursuant to Policy ¶ 4(c)(i). See Meow Media Inc. v.
Basil, FA 113280
(Nat. Arb. Forum
Moreover, nothing in the record indicates
that Respondent is commonly known by the disputed domain name under Policy ¶
4(c)(iii). The WHOIS information lists the registrant as
“CNCPros.net a/k/a Brian Denny.” Because
Respondent failed to respond to the Complaint, there is no evidence in the
record to the contrary. See Braun Corp. v. Loney, FA 699652 (Nat. Arb.
Forum July 7, 2006) (concluding that the respondent was not commonly known by
the disputed domain names where the WHOIS information, as well as all other
information in the record, gave no indication that the respondent was commonly
known by the disputed domain names, and the complainant had not authorized the
respondent to register a domain name containing its registered mark); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that the respondent was not commonly known by the <coppertown.com> domain
name where there was no evidence in the record, including the WHOIS
information, suggesting that the respondent was commonly known by the disputed
domain name). Therefore,
the Panel finds that Respondent is not commonly known by the <haascnc.us> domain name under
Policy ¶ 4(c)(iii).
Respondent is using the disputed domain name to resolve to a website featuring click-through links which further resolve to websites of Complainant’s competitors. Respondent presumably receives referral fees from the advertisers listed on its website. Thus, the Panel finds that Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(ii) or (iv), respectively. See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to UDRP ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to UDRP ¶ 4(c)(iii)); see also Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (holding that the respondent’s use of disputed domain names to market competing limousine services was not a bona fide offering of goods or services under UDRP ¶ 4(c)(i), as the respondent was appropriating the complainant’s CAREY mark in order to profit from the mark).
Moreover, Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain name based on Respondent’s willingness to transfer the disputed domain name. The Panel finds that Respondent’s acquiescence to Complainant’s request to transfer the disputed domain name, despite the fact that Respondent did not submit a formal Response to the Complaint, indicates that Respondent lacks rights or legitimate interests in the <haascnc.us> domain name under Policy ¶ 4(a)(ii). See Global Media Group, Ltd. v. Kruzicevic, FA 96558 (Nat. Arb. Forum Mar. 7, 2001) (finding that the respondent’s willingness at the onset of the complaint to transfer the domain names shows it lacks any legitimate interest or rights in the names); see also Gassan Diamonds B.V. v. Van Etten Bernardus Jacobus, AF-0149b (eResolution May 25, 2000) (finding that the respondent’s willingness to transfer is evidence of its lack of legitimate rights/interests in the name).
Complainant has satisfied
Policy ¶ 4(a)(ii).
Registration
and/or Use in Bad Faith
Complainant contends that Respondent has engaged in bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iii). Respondent is using a domain name, which is confusingly similar to Complainant’s HAAS mark, to attract Internet users to a website containing click-through links that further resolve to websites of Complainant’s competitors. The Panel finds that appropriating Complainant’s HAAS mark to divert Internet users seeking Complainant to Respondent’s <haascnc.us> domain name is likely disrupting Complainant’s business and constitutes bad faith use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under UDRP ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to [UDRP] ¶ 4(b)(iii).”).
Respondent is presumably generating revenue from the click-through links on the website resolving from the <haascnc.us> domain name. Complainant asserts that Respondent is attempting to attract Internet users who are seeking out Complainant’s website, diverting them to resolving websites of Complainant’s competitors, and profiting from this diversion scheme. The Panel finds that such use constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to UDRP ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name).
Complainant has
satisfied Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <haascnc.us> domain name be TRANSFERRED from Respondent to Complainant.
Dated: June 30, 2009
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