Emerson Electric Co. v. Gold Hunt
Claim Number: FA1709001750159
Complainant is Emerson Electric Co. (“Complainant”), Missouri, USA. Respondent is Gold Hunt (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <emerson.world>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 21, 2017; the Forum received payment on September 21, 2017.
On September 22, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <emerson.world> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 September 22, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 2017 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@emerson.world. Also on September 22, 2017, 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 October 17, 2017, 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 states that it was established in 1890 in St. Louis, Missouri (USA) as Emerson Electric Manufacturing Co. by Civil War Union veteran John Wesley Emerson to manufacture electric motors using a patent owned by the Scottish-born brothers Charles and Alexander Meston. In 1892 it became the first to sell electric fans in the United States. It quickly expanded its product line to include electric sewing machines, electric dental drills, and power tools. At present, it is a diversified, global technology and engineering leader that offers a wide range of products and services in the industrial, commercial, and consumer markets. Complainant has approximately 140,700 employees and 155 manufacturing locations worldwide. Complainant holds multiple registrations of its EMERSON mark in the United States and elsewhere, with rights dating back to 1916.
According to Complainant, the disputed domain name is identical to its EMERSON mark because it incorporates the mark in its entirety, making no changes to the mark, and merely attaches a “.world” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interest in the disputed domain name. Respondent is not commonly known by that domain name; rather, WHOIS shows Respondent has used a privacy service to hide its real identity, which was later lifted to reveal “Gold Hunt.” Furthermore, Respondent did not make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name redirects users to third-party websites and Respondent is presumed to receive pay-per-click fees from these links, some of which reference Complainant’s business: the hyperlinks include “Cadillac,” “Emerson Power,” “Emerson Electric”, and “Emerson Process Management”. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith. Respondent intended to cause confusion among users searching for Complainant’s business by using the EMERSON mark on its webpage. Respondent knew or should have known of Complainant’s EMERSON mark prior to its registration due to its fame and notoriety. Respondent further demonstrated bad faith by using a privacy service to hide its identity and for failing to respond to Complainant’s cease and desist letters. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark EMERSON and uses it to market a wide range of products and services in the industrial, commercial, and consumer markets.
Complainant’s rights in its mark date back to 1916.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name resolves to a website that contains advertising links to products that compete with those of Complainant, as well as to unrelated products.
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(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 disputed domain name is identical to Complainant’s EMERSON mark because it includes the mark, unchanged, and merely attaches a descriptive gTLD, “.world”, which is related to Complainant’s international business. This fails to differentiate the disputed domain name from the mark. See Twentieth Century Fox Film Corporation v. Diego Ossa, FA 1602016 (Forum Feb. 26, 2015) (finding confusing similarity “as Complainant has offered its services under the FOX SPORTS mark in New York City for years, the Panel agrees that the affixation of the gTLD “.nyc” to the otherwise incorporated mark only serves to increase confusing similarity.). Therefore, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has not licensed or authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: absent a response, the Panel can consider the WHOIS data to analyze this element of the Policy. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, WHOIS data identifies the registrant as “Gold Hunt,” which does not resemble the disputed domain name. Furthermore, Respondent has not submitted any additional evidence to suggest a right or legitimate interest in the disputed domain name. Therefore, the Panel finds that Complainant has satisfied Policy ¶ 4(c)(ii).
Further, Respondent has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name resolves to a website containing competing third-party links and Respondent presumably profits from pay-per-clicks. The links include “Emerson Power”, “Emerson Electric”, and “Emerson Process Management.” This indicates that Respondent has no right or legitimate interest in the disputed domain name. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Therefore, the Panel finds that Complainant has satisfied Policy ¶¶ 4(c)(i) and (iii), and that Respondent has no rights or legitimate interests in the disputed domain name.
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. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent’s use of the disputed domain name intentionally attempts to attract users by creating confusion as to source, sponsorship, affiliation, or endorsement by using the EMERSON mark in connection with third party hyperlinks, some of which compete with Complainant. Using a mark for the purposes of creating confusion and commercially gaining from the confusion is considered to constitute bad faith use under the Policy. See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained); see also Dell Inc. v. Innervision Web Solutions, FA 445601 (Forum May 23, 2005) (finding evidence of bad faith under Policy ¶ 4(b)(iv) where the respondent was using the <dellcomputerssuck.com> domain name to divert Internet users to respondent’s website offering competing computer products and services); see also Trimble Navigation Limited v. Davide Erba, D2009-0881(WIPO August 25, 2009) (“The use of the Domain Name for a website featuring links to competitors of the Complainant is a classic example of bad faith.). Accordingly, the Panel finds that Complainant has satisfied Policy ¶ 4(b)(iv), and that the Respondent has registered and is using the disputed domain name 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 <emerson.world> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 17, 2017
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