Solar Turbines Incorporated v. Records Docs
Claim Number: FA1811001815222
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie Bald of Kelly IP, LLP, District of Columbia, USA. Respondent is Records Docs (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solaturbines.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 6, 2018; the Forum received payment on November 6, 2018.
On November 7, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <solaturbines.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 November 7, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 27, 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@solaturbines.com. Also on November 7, 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 November 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, Solar Turbines Inc., is one of the world’s leading designers and manufacturers of industrial gas turbines and turbomachinery packages for use in the oil and gas and power generation industries. Complainant has used their SOLAR TURBINES and SOLAR marks in connection with its services for several decades. Complainant asserts rights in the SOLAR TURBINES mark based upon registration with multiple agencies around the world. Furthermore, Complainant asserts rights in the SOLAR mark based on registration with the United States Patent and Trademark Office as well as several other international registrars. (e.g. Reg. No. 1,026,577 registered Jan. 20, 1975).
2. Respondent’s <solaturbines.com>[i] domain name is confusingly similar to Complainant’s SOLAR TURBINES mark, as it is comprised of a close misspelling Complainant’s mark, omitting only the single letter “R.” Furthermore, Respondent’s domain name is confusingly similar to Complainant’s SOLAR TURBINES mark because it contains the entire mark differing only by a close misspelling.
3. Respondent has no rights or legitimate interests in the <solaturbines.com> domain name because Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the SOLAR and SOLAR TURBINES marks in any manner.
4. Respondent’s use of the domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent has engaged in typosquatting and is not actively using the domain name.
5. Respondent registered and is using the <solaturbines.com> domain name in bad faith. It intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
6. Furthermore, Respondent has engaged in typosquatting and a bad-faith pattern of typosquatted domain registrations.
7. Additionally, Respondent disrupts Complainant’s business by passively holding the <solaturbines.com> domain name. Finally, Respondent had actual knowledge of Complainant’s rights in the SOLAR and SOLAR TURBINES marks prior to registering the <solaturbines.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the SOLAR and SOLAR TURBINES marks. Respondent’s domain name is confusingly similar to Complainant’s SOLAR TURBINES mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <solaturbines.com> domain name and that Respondent registered and uses the domain name 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.
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.”).
Complainant has rights in the SOLAR TURBINES mark based upon its registrations with multiple registrars throughout the world. Registration of a mark is sufficient to establish Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017); see also Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015). Complainant provides copies its’ registrations for the SOLAR TURBINES mark in various countries around the world. The Panel holds that Complainant’s registrations of the SOLAR TURBINES mark are sufficient to establish rights in the mark under Policy ¶ 4a(a)(i).
Complainant next argues Respondent’s <solaturbines.com> domain name is confusingly similar to the SOLAR TURBINES mark because it is comprised of a close misspelling of Complainant’s mark. Omission of a single letter of a complainant’s mark is generally insufficient to overcome a confusingly similar analysis per Policy ¶ 4(a)(i). See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “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.”). Here, Respondent merely omitted the letter “R” from Complainant’s SOLAR TURBINES mark when registering the <solaturbines.com> domain name. The Panel holds that the <solaturbines.com> domain name is confusingly similar to Complainant’s SOLAR TURBINES mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <solaturbines.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <solaturbines.com> domain name, as Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the SOLAR TURBINES mark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the domain name. Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization from a complainant to use its’ mark may be further evidence that a respondent is not commonly known by the domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record identifies the owner of the <solaturbines.com> domain name as “Records Docs” and no information in the record indicates Respondent was authorized to register a domain name with Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <solaturbines.com> domain name.
Complainant argues that Respondent’s passive holding of the <solaturbines.com> domain name is further evidence that Respondent lacks a legitimate interest in the domain name. Inactive use of a domain name incorporating the mark of another is not considered a bona fide offering of goods and services or a legitimate noncommercial or fair use per Policy ¶ 4(a)(ii). See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Complainant has provided a screenshot of the error page to which the <solaturbines.com> domain name resolves. The Panel therefore determines that Respondent does not have rights or legitimate interests in the <solaturbines.com> domain name.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues Respondent has engaged in a pattern of bad-faith domain name registrations. Where a respondent has registered multiple infringing domain names containing well-known trademarks, the respondent can be considered to have acted in bad faith under Policy ¶ 4(b)(ii). See Blue Diamond Growers v. L Wood, FA 1464477 (Forum June 7, 2017) (finding evidence that the respondent had previously registered domain names infringing on famous third-party marks established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Complainant provides screen shots of WHOIS printouts and various webpages that show Respondent as the registrant of several websites that infringe on other well-known marks. The Panel finds that Respondent has engaged in a pattern of bad faith per Policy ¶ 4(b)(ii).
Additionally, Complainant alleges that Respondent’s bad faith is indicated by its failure to use the <solaturbines.com> domain name. Passive holding of a domain name incorporating the mark of another can be evidence of bad faith under Policy ¶ 4(b)(iv). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose). Complainant provides a screenshot of the error page to which the <solaturbines.com> domain name resolves. The Panel finds that Respondent has made no use of the domain name and has acted in bad faith per Policy ¶ 4(b)(iv).
Complainant further argues that Respondent’s bad faith is indicated by its use of the <solaturbines.com> domain name to typosquat Complainant’s SOLAR TURBINES mark. Typosquatting is indicative of bad faith per Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name.”). Here, Respondent merely omitted the letter “R” from Complainant’s SOLAR TURBINES mark. The Panel agrees that Respondent has engaged in the practice of typosquatting per Policy ¶ 4(a)(iii).
Finally, Complainant asserts that Respondent’s bad faith is indicated by Respondent’s actual knowledge of Complainant’s SOLAR TURBINES mark. Actual knowledge by a respondent of a complainant’s mark is evidence of bad faith per Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). Here, the close and obvious misspelling of Complainant’s SOLAR TURBINES mark in the <solaturbines.com> domain name as well as Complainant’s long-term prior use of the mark shows that Respondent had actual knowledge of Complainant’s rights in the mark. The Panel holds that Respondent had actual knowledge of Complainant’s mark prior to registering the <solaturbines.com> domain name per Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied 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 <solaturbines.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 7, 2018
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