Fluor Corporation v. MIKE RAYMOND
Claim Number: FA1504001614387
Complainant is Fluor Corporation (“Complainant”), Texas, USA. Respondent is MIKE RAYMOND (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fluor-bv.com> ('the Domain Name'), registered with ENOM, INC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 14, 2015; the Forum received payment on April 14, 2015.
On April 15, 2015, ENOM, INC. confirmed by e-mail to the Forum that the <fluor-bv.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. 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 April 15, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 5, 2015 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@fluor-bv.com. Also on April 15, 2015, 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 May 13, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant's submissions can be summarised as follows:
The Complainant is the owner of the FLUOR trade mark across the world including the USA (registered since 1954)and the European Union for construction services. Founded in 1912 it is one of the largest publicly owned engineering, construction and project management companies in the world. It maintains a workforce of 40,000 employees across six continents, and its network of offices spans 30 countries worldwide. In 2013 it earned revenues of 27.4 billion USD. It is a fortune 500 company and in 2014 for the third consecutive year it was ranked no 1 in the engineering construction category of Fortune magazine’s world's most admired companies. The Complainant operates numerous web sites including Fluor.com which attracts over 39,000 unique visitors per month. Complainant enjoys a substantial degree of public recognition in its FLUOR trade mark and the mark is uniquely associated with the Complainant.
The top level domain of the Domain Name should not be considered for the purposes of determining whether the Domain Name is confusingly similar to the Complainant’s trade marks.
The Domain Name registered in 2014 reproduces the Complainant’s famous FLUOR mark and simply adds a dash (-) and the generic corporate designation 'bv' the abbreviation for Besloten Vennootschap, the Dutch terminology for a private limited liability Company to the end of the Complainant’s mark. The addition of the generic corporate designation ‘bv’ to Complainant's trade mark does not negate the confusing similarity between the Domain Name and the Complainant’s mark. The Complainant operates as Fluor BV in the Netherlands.
Respondent is not connected to the Complainant in any way and the Complainant has not given the Respondent any permission to use its mark. Respondent has not been commonly known by the Domain Name.
The Domain Name does not resolve to content but it has been used in connection with an e mail scam where recipients are asked to update their domain name address for remittance advice to ‘finance@fluor-bv.com’. Respondent is purporting to pass itself off as the Complainant and to obtain confidential information for its own financial gain. This cannot be legitimate.
The Respondent is seeking to confuse Internet users and seeks to pass off the Domain Name as connected with the Complainant. By registering and using the Domain Name in this way the Respondent is perpetuating a fraud and creating a likelihood of confusion with the Complainant’s mark.
In any event passive holding of a Domain Name confusingly similar to a famous trade mark is bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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.
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(e), 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.”).
The Domain Name consists of the Complainant’s FLUOR mark (registered in the USA and European Community) with a hyphen and the generic corporate designation 'bv' (which indicates a Dutch company) added. Punctuation marks, such as hyphens and gTLDs are typically irrelevant in the determination of confusing similarity. See Health Device Corp v Aspen STC FA 158254 (Nat. Arb. Forum July 1, 2003) ('The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4(a) (i)') See also Isleworth Land co v Lost in Space SA, FA 117330 (Nat. Arb. Forum Sept 27, 2002) ('It is a well-established policy that generic top level domains are irrelevant when conducting a Policy 4(a) (i) analysis.) Further past panels have held that the addition of an abbreviation to a registered mark does not serve to distinguish the disputed domain name from the original mark. See Kelson Physician Partners Inc v Mason, CPR003 (CPR 2000)(finding that Kelsonmd.com is confusingly similar to the complainant’s federally registered service mark KELSON). Accordingly, the addition of a hyphen and the generic designation ''bv' indicating a Dutch company does not serve to distinguish the Domain Name from the Complainant's FLUOR trade mark. As such the Domain Name is confusingly similar to a trade mark in which the Complainant has rights for the purpose of the Policy.
The Respondent has not filed a Response and does not appear to have any trade marks associated with the name FLUOR. There is no evidence that it is commonly known by this name and it does not have any consent from the Complainant to use this name. It does not appear to have used the Domain Name for any bona fide offering of services of its own. In fact, on the evidence the Complainant has successfully shown that the Respondent has sought to pass itself off as the Complainant in order to gather information by means of a misleading e mail. See Juno Online Servs, Inc. v Nelson, FA 241972 (Nat Arb Forum Mar. 29 2004) (finding that using a domain name in a fraudulent scheme to deceive internet users into providing their credit card details and personal information is not a bona fide offering of goods and services nor a legitimate non-commercial or fair use). The act of 'phishing', as such practices are known, does not constitute legitimate use. Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name.
Paragraph 4 (b) of the Policy sets out non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including circumstances where, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on‑line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location. Reviewing the evidence that the Respondent sent e mails using the Domain Name to Complainant's suppliers requesting the recipient to update its e mail address and to forward Respondent copies of recent paid invoices the Panelist finds that the Respondent has attempted to cause confusion amongst Internet users between the Complainant’s mark and its Domain Name for commercial gain. Past panels have held that phishing for information for financial information through a disputed domain name indicates bad faith. See Wells Fargo & Co. v Maniac State, FA 608239 (Nat Arb Forum) Jan 19 2006) (finding bad faith registration and use where the respondent was using the wellsbankupdate.com domain name in order to act fraudulently to acquire financial information of the Complainant’s customers.) As such the Panelist finds that the Complainant has made out its case under para 4 (b) (iv) of the Policy.
Accordingly, the Panel finds that the Domain Name has been registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fluor-bv.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 26, 2015
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