Oris Technologies Incorporated v. Iantz IT Solutions / Sreehari S
Claim Number: FA1211001473772
Complainant is Oris Technologies Incorporated (“Complainant”), represented by Matthew H. Swyers of The Trademark Company, PLLC, Virginia, USA. Respondent is Iantz IT Solutions / Sreehari S (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oristechglobal.com>, registered with Name.com LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 30, 2012; the National Arbitration Forum received payment on November 30, 2012.
On December 3, 2012, Name.com LLC confirmed by e-mail to the National Arbitration Forum that the <oristechglobal.com> domain name is registered with Name.com LLC and that Respondent is the current registrant of the name. Name.com LLC has verified that Respondent is bound by the Name.com LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 11, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 31, 2012 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@oristechglobal.com. Also on December 11, 2012, 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.
A timely Response was received and determined to be complete on December 28, 2012.
Complainant submitted an Additional Submission on January 2, 2013, which was determined to be compliant with Supplemental Rule 7.
Respondent submitted an Additional Submission on January 9, 2013, which was determined not to be compliant with Supplemental Rule 7, as it was received after the deadline for such submissions.
On January 8, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant has used the service mark ORISTECH to identify its records management services throughout the United States since at least 2005. Complainant registered the domain name <oristech.com> in October 2003, and its ORISTECH mark was registered on the Principal Register of the U.S. Patent and Trademark Office (“USPTO”) in September 2006.
Respondent registered the disputed domain name <oristechglobal.com> on February 10, 2011, long after Complainant began use of its mark. Complainant alleges that Respondent registered and is using a domain name that is confusingly similar to Complainant’s mark to create confusion among Internet users seeking Complainant’s services and to promote its own services offered in competition with those offered by Complainant. Complainant contends that Respondent has no rights or legitimate interests with respect to the disputed domain name and that Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent contends that the disputed domain name is not confusing, as those searching for “the common word ‘Oristech’” will find Complainant’s site to be the first-listed search result, and only those users seeking additional options would find Respondent’s site. Respondent further states that its website is different in appearance from Complainant’s and clearly states that Respondent is located in India and that its business “is in a wider spectrum” than Complainant’s. Respondent denies any deliberate efforts to misdirect traffic to its site. Respondent also states that it was registered as a partnership firm on May 31, 2011, and that its use of the disputed domain name was approved by the Register of Firms in India.
C. Additional Submissions
The Panel has carefully reviewed the Parties’ Additional Submissions and finds nothing in either of them that merits substantive consideration in this proceeding.
Complainant’s Additional Submission largely consists of the same arguments that appear in its prior submission. Furthermore, the submission fails to identify any exceptional circumstances that would warrant consideration of additional material, and no such circumstances are apparent to the Panel. See America Online, Inc. v. Thricovil, FA 638077 (Nat. Arb. Forum Mar. 22, 2006). Nor has Respondent identified any exceptional circumstances warranting consideration of its untimely and repetitive Additional Submission. The Panel therefore declines to consider the Parties’ Additional Submissions.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights. The Panel further finds that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the domain name was registered and is being used in bad faith.
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 and is being used in bad faith.
The disputed domain name consists of Complainant’s registered mark ORISTECH with the word “global” and the top-level domain suffix “.com” appended thereto. Neither of these additions is sufficient to prevent the domain name from being confusingly similar to Complainant’s mark. See, e.g., Bloomberg Finance L.P. v. Xiaohua Dai, FA 1454296 (Nat. Arb. Forum Aug. 22, 2012) (finding <bloomberg-global.com> confusingly similar to BLOOMBERG); Nokia Corp. v. Arzanesh Nezhad Hanzali, FA 1271506 (Nat. Arb. Forum Aug. 26, 2009) (finding <nokiaglobal.com> confusingly similar to NOKIA); Google Inc. v. Leadsco, FA 1267428 (Nat. Arb. Forum July 23, 2009) (finding <pagerankglobal.com> confusingly similar to PAGERANK); Reed Elsevier Inc. v. Pushkin Gupta, FA 967682 (Nat. Arb. Forum May 29, 2007) (finding <nexisglobal.com> confusingly similar to NEXIS); HPR Commodities LLC v. John Galledo, D2007-0154 (WIPO May 26, 2007) (finding <hprglobal.com> confusingly similar to HPR); Ticketmaster Corp. v. IT-Norind, D2004-0068 (WIPO Mar. 26, 2004) (finding <globalticketmaster.com> confusingly similar to TICKETMASTER).
Complainant alleges that Respondent is using the disputed domain name to promote services that compete with those offered by Complainant. Respondent counters that its domain name, its website, and the scope of its services are sufficiently different that Respondent is entitled to use the domain name for this purpose and thus has rights or legitimate interests therein.
The Panel finds that proposition that Respondent adopted a name so similar to Complainant’s for any reason other than to trade upon Complainant’s fame and reputation utterly astounding. Respondent’s reference to “the common word ‘Oristech’” belies credulity, as “Oristech” is not a common word nor even an obscure word in any language known to the Panel, and Respondent has offered no evidence to the contrary. Complainant’s website promotes HIPAA-compliant medical transcription and other records management services, apparently targeted at the United States. Respondent’s website similarly promotes HIPAA-compliant medical transcription and related services offered from India to customers in the United States and possibly other countries.
Respondent’s use of the disputed domain name in this manner does not qualify as a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy. See, e.g., Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (holding that the use of a domain name to promote services competing with those offered by Complainant was not a bona fide offering of goods or services).
With regard to Respondent’s contention that it is registered under the name Oristech Global and that its domain name was permitted by the Register of Firms in India, the Panel finds the evidence presented by Respondent insufficient to support this claim. The only evidence Respondent offers in this regard is a bare “receipt of fees” acknowledging a payment of 15 Rupees (approximately US$0.28) received from Oristech Global for “Regis.”
Under Paragraph 4(b)(iv) of the Policy, the intentional use of a domain name to attract Internet users for commercial gain by creating a likelihood of confusion with the Complainant’s mark serves as evidence of the registration and use of the domain name in bad faith. For the same reasons as those set forth above regarding rights or legitimate interests, the Panel concludes that the disputed domain name in this proceeding was registered and is being used in bad faith.
Having considered all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oristechglobal.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 18, 2013
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