Hexcel Corporation v. keepwalking289 stats / stats inc.
Claim Number: FA1506001623003
Complainant is Hexcel Corporation (“Complainant”), represented by James L. Bikoff of Smith, Gambrell & Russell, LLP, District of Columbia, USA. Respondent is keepwalking289 stats / stats inc. (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hexcelcomposites.com>, registered with NameSilo, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 5, 2015; the Forum received payment on June 5, 2015.
On June 5, 2015, NameSilo, LLC confirmed by e-mail to the Forum that the <hexcelcomposites.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 8, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 29, 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@hexcelcomposites.com. Also on June 8, 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 July 7, 2015 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 alleges that it is a leading advanced composites company, one of the largest producers of such products in the world. Its products are well known and widely used around the world.
Complainant states that it uses the registered mark HEXCEL in connection with its. Its use of the mark dates back to 1968 and the mark was registered in 1985 in numerous countries.
According to Complainant, the disputed domain name is confusingly similar to Complainant’s mark in that the domain includes the mark in its entirety and merely adds the descriptive word “composites” and the generic top-level domain (“gTLD”) “.com”. These differences are not sufficient distinguish the domain from Complainant’s mark. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent is not affiliated with the Complainant, nor is there any information, including WHOIS information, indicating that Respondent is commonly known by the disputed domain name.
Complainant states that Respondent is using the disputed domain name to resolve to an adult entertainment web site. This is not a legitimate use in the sense of the Policy. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent’s domain name creates a likelihood of confusion which the Respondent intentionally exploits for commercial gain. Users who are seeking Complainant’s legitimate websites are instead brought to Respondent’s illegitimate website which displays adult-oriented material. This constitutes bad faith registration and use in the sense of the Policy. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent appears to be a serial cybersquatter. Respondent owns over 400 other domain names; many of these are either parked, do not resolve, or resolve to adult entertainment web sites. The Respondent has been cited in other UDRP cases.
Complainant has registered trademarks for numerous marks that include the name HEXCEL, dating back to 1985. Its marks are well known.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2014.
The products and services offered by Complainant, which include composites, are widely used and well known.
Respondent is using the disputed domain name to resolve to an adult entertainment web site.
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 Panel finds that the disputed domain name is confusingly similar to Complainant’s mark because it contains the entire mark and adds the generic term “composites”. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Miller Brewing Co. v. Domain Active Pty. Ltd., FA 243606 (Nat. Arb. Forum Apr. 23, 2004) (finding that the <millerbeers.com> domain name was confusingly similar to the complainant’s MILLER mark, because “[t]he addition of a descriptive term that describes Complainant’s business to Complainant’s registered mark, does not remove the domain from the realm of confusing similarity with regard to Policy ¶ 4(a)(i).”); Eastman Chem. Co. v. Patel, FA 524752 (Nat. Arb. Forum Sept. 7, 2005) (“Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business, the addition of a hyphen, and the addition of the gTLD ‘.com’ are insufficient to distinguish Respondent’s domain name from Complainant’s mark.”).
Respondent is not authorized to use Complainant’s mark and it is not commonly known by the disputed domain name. Respondent is using the disputed domain name to resolve to an adult entertainment web site. Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate.
The Panel finds that Respondent’s use of the disputed domain name does not constitute a bona fide offering or a legitimate noncommercial or fair use. See Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that use of the <targetstore.net> domain name to redirect Internet users to an adult-oriented website did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii)); see also Motorola, Inc. vs NewGate Internet, Inc., D2000-0079 (WIPO April 14, 2000) (“While … many adult sex sites are perfectly legal and constitute bona fide offerings of goods or services, the use of somebody else’s trademark as a domain name (or even as a meta-tag) clearly does not constitute a ‘bona fide’ offering of goods or services when the web site owner has no registered or common law rights to the mark, since the only reason to use the trademark as a domain name or meta-tag is to attract customers who were not looking for an adult sex site, but were instead looking for the products or services associated with the trademark. Such use of a trademark can create customer confusion or dilution of the mark, which is precisely what trademark laws are meant to prevent. And actions that create, or tend to create, violations of the law can hardly be considered to be ‘bona fide’.”).
Thus the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
As already noted, Respondent is using the disputed domain name to resolve to an adult entertainment web site. Internet users will likely be confused when they land on Respondent’s site after typing the disputed domain name. Respondent profits from the visits to the web site at the disputed domain name. Panels have routinely found bad faith under Policy ¶ 4(b)(iv) where a respondent intentionally attracted internet users to a website displaying adult-oriented material. See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Microsoft Corp. v. Horner, D2002-0029 (WIPO Feb. 27, 2002) (holding that the respondent’s use of the complainant’s mark to post adult-oriented photographs and to publicize hyperlinks to additional adult-oriented websites evidenced bad faith use and registration of the domain name); add also Motorola, Inc. vs NewGate Internet, Inc., D2000-0079 (WIPO April 14, 2000). In addition, prior panels have found that a respondent who creates a likelihood of confusion for commercial gain has engaged in bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
The Panel finds that a likelihood of confusion exists, that Respondent is commercially profiting in the process, and that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hexcelcomposites.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 13, 2015
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