Badger Meter, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1807001797621
Complainant is Badger Meter, Inc. (“Complainant”), represented by Heather S. Stutz of Quarles & Brady LLP, Wisconsin. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <badermeter.com>, registered with GoDaddy.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 19, 2018; the Forum received payment on July 19, 2018.
On Jul 20, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <badermeter.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 July 25, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 2018 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@badermeter.com. Also on July 25, 2018, 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 August 16, 2018, 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 is a leading manufacturer and marketer of water meters and other products incorporating flow measurement, control and communication solutions. Complainant provides water utilities, municipalities, and commercial and industrial customers worldwide with products that measure water, oil, chemicals and other fluids. Its products are well-known for accuracy, long-lasting durability, and for providing valuable and timely measurement data. Complainant has used its BADGER METER marks to identify its water meters and associated goods since at least as early as 1905. Complainant has rights in the BADGER METER mark based upon its registration of the mark in Korea in 1996, in the European Union in 2005, and in the United States in 2013. The mark is also registered elsewhere.
Complainant alleges that the disputed domain name is confusingly similar to its BADGER METER mark, as the domain name merely omits the letter “g” from the mark.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the BADGER METER mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect Internet users to a rotating series of third party websites that are unrelated to Complainant and display pay-per-click hyperlinks.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent registered and has used the domain name intentionally to attract Internet users for commercial gain by creating a likelihood of confusion with Complainant’s marks. Additionally, Respondent engaged in typosquatting by registering a domain name with a minor misspelling of Complainant’s mark. Further, Respondent clearly had actual knowledge of Complainant’s and its rights in the BADGER METER mark at the time it registered and subsequently used the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BADGER METER and uses it to market metering equipment.
Complainant’s rights in its mark date back to at least 1996.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent is using the disputed domain name to resolve to a website containing advertising links for products and services not related to Complainant.
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 confusingly similar to the BADGER METER mark, as the name merely omits the letter “g” from the mark. A small change to a mark, such as the omission of a single letter, is not sufficient to distinguish a domain name from the incorporated mark in a Policy ¶ 4(a)(i) analysis. See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (“The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”); see also Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (“Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). The Panel therefore finds that the <badermeter.com> domain name is confusingly similar to the BADGER METER mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the BADGER METER mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant as “Carolina Rodrigues / Fundacion Comercio Electronico.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Further, Respondent’s lack of rights or legitimate interests in the disputed domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, the name resolves to a rotating series of websites which are being used to obtain click-through revenue by linking to third-party websites. Use of a domain name to resolve to a webpage displaying third party hyperlinks is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Bloomberg Finance L.P. v. Syed Hussain / IBN7 Media Group, FA 1721384 (Forum Apr. 26, 2017) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. And the Panel finds that Respondent does not have 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, the resolving website contains advertising links to third party websites unrelated to Complainant’s business. Use of a domain name to resolve to a page of third-party links can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). 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). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Respondent’s bad faith is further evident through its typosquatting behavior. Here, the disputed domain name differs from Complainant’s mark only by the omission of the letter “g” in the mark. Typosquatting is the registration of domain names which target specific marks and only differ through minor typographical mistakes, and can be independent evidence of bad faith per Policy ¶ 4(a)(iii). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein). Accordingly, the Panel finds that Respondent’s typosquatting behavior indicates it registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <badermeter.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 16, 2018
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