Questar Corporation v. Domain Park Limited
Claim Number: FA0802001153414
Complainant is Questar Corporation (“Complainant”), represented by Michael
M. Ballard of Workman
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <questaregas.com> and <wwwquestar.com>, registered with Rebel.com and Moniker Online Services, Inc., respectively.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically February 22, 2008; the National Arbitration Forum received a hard copy of the Complaint February 25, 2008.
On February 25, 2008, Rebel.com and Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <questaregas.com> and <wwwquestar.com> domain names are registered with Rebel.com and Moniker Online Services, Inc., respectively and that Respondent is the current registrant of the names. Rebel.com and Moniker Online Services, Inc. verified that Respondent is bound by the Rebel.com and Moniker Online Services, Inc. registration agreements and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 3, 2008, by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@questaregas.com and postmaster@wwwquestar.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 8, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain names that Respondent registered, <questaregas.com>, and <wwwquestar.com>, are confusingly similar to Complainant’s QUESTAR mark.
2. Respondent has no rights to or legitimate interests in the <questaregas.com> and <wwwquestar.com> domain names.
3. Respondent registered and used the <questaregas.com> and <wwwquestar.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Questar Corporation, is engaged in gas and oil
exploration, development, production, and distribution. Complainant’s main operations serve
residential and commercial markets in the
Respondent registered the <questaregas.com> and <wwwquestar.com> domain names March 12, 2007 and April 20, 2007, respectively. Respondent is currently using both disputed domain names to resolve to websites that feature links to commercial websites, some of which are in direct competition with 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."
Given 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 will draw such inferences as the Panel 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.”).
Paragraph 4(a) of the Policy requires Complainant to 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.
Complainant established sufficient rights in the QUESTAR mark through registration of the mark with the USPTO under Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent incorporated Complainant’s QUESTAR mark within
the <questaregas.com> and <wwwquestar.com>
domain names, while adding the “e” and “gas” to the former disputed domain name,
and the prefix “www” to the latter. The
additions of “e,” “gas,” or the prefix “www” generally fail to render the
disputed domain name distinct for the purpose of Policy ¶ 4(a)(i). Complainant’s mark remains the dominant
feature, especially in the instance of “gas,” as it relates directly to
Complainant’s operations. For the
reasons stated above, the Panel finds that both disputed domain names are
confusingly similar to Complainant’s QUESTAR mark pursuant to Policy ¶ 4(a)(i). See
Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) (finding
that <kelsonmd.com> is identical or confusingly similar to the
complainant’s federally registered service mark, KELSON); see also Brown & Bigelow,
Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding
that the <hoylecasino.net> domain name is confusingly similar to the
complainant’s HOYLE mark, and that the addition of “casino,” a generic word
describing the type of business in which the complainant is engaged, does not
take the disputed domain name out of the realm of confusing similarity); see also Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23,
2002) (holding that the letters "www" are not distinct in the
"Internet world" and thus the respondent 's
<wwwmarieclaire.com> domain name is confusingly similar to the
complainant's MARIE CLAIRE trademark).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant alleged that Respondent lacks rights and legitimate interests in the <questaregas.com> and <wwwquestar.com> domain names. This assertion constitutes a successful prima facie case supporting its allegations, and the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s disputed domain names resolve to websites that feature commercial third-party links, some of which lead to Complainant’s competitors. Presumably, Respondent receives referral revenue from the advertisers listed on Respondent’s websites. The mere use of a disputed domain name, intended solely to divert and subject Internet users to such advertisements, does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶¶ 4(c)(i) and (iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where the respondent attempted to profit using the complainant’s mark by redirecting Internet traffic to its own website).
Respondent offers no evidence in the record, including the
WHOIS domain name registration information, to suggest that it is commonly
known by the disputed domain names.
Indeed, the registrant listed for each disputed domain name is “Domain
Park Limited,” which bears no cognizable resemblance to the disputed domain
names. Therefore, the Panel finds that
Respondent lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish
Country Store, FA 96209 (Nat. Arb.
Forum Jan. 23, 2001) (finding that the respondent does not have rights in a
domain name when the respondent is not known by the mark); see also Am. W.
Airlines, Inc. v. Paik, FA 206396 (Nat.
Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name
under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration
information, Respondent is not commonly known by the [<awvacations.com>]
domain name.”).
Respondent’s <wwwquestar.com>
domain name merely adds the prefix “www” to Complainant’s QUESTAR mark. This disputed domain name therefore bears the
hallmark of typosquatting, which describes an attempt to manipulate common
Internet users’ typographical errors and divert those users to an unintended
website. Typically, this is accomplished
by removing the period between the prefix “www,” and the remainder of the
disputed domain name. That is what
happened in this case. The Panel finds
that Respondent’s typosquatting emphasizes its lack of rights and legitimate
interests in the <wwwquestar.com>
domain name pursuant to Policy ¶ 4(a)(ii). See Black & Decker
Corp. v. Khan, FA 137223 (Nat. Arb. Forum
Feb. 3, 2003) (finding no rights or legitimate interests where the respondent
used the typosquatted <wwwdewalt.com> domain name to divert Internet
users to a search engine webpage, and failed to respond to the complaint); see also Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******,
FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of
the complainant’s DINERS CLUB mark, was evidence in and of itself that the
respondent lacks rights or legitimate interests in the disputed domain name vis
á vis the complainant).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent’s disputed domain names draw Internet users to
corresponding websites that subject those users to links, some of which lead to
Complainant’s competitors. Given
Respondent’s presumed receipt of referral fees from advertisers listed on these
websites, the Panel finds that Respondent attempted to disrupt Complainant’s
business and therefore engaged in bad faith registration and use pursuant to
Policy ¶ 4(b)(iii).
See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”); see also S. Exposure v.
S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the
respondent acted in bad faith by attracting Internet users to a website that
competes with the complainant’s business).
Respondent likely generates commercial revenue from its disputed domain names due to the listing of advertisements on the corresponding websites. These disputed domain names incorporate Complainant’s entire QUESTAR mark, and therefore Respondent has created a likelihood of confusion for commercial benefit regarding the source and affiliation of the disputed domain names and corresponding websites. Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”).
The Panel finds that Respondent’s registration of the <wwwquestar.com> domain name
constitutes typosquatting, conduct that supports findings of Respondent’s bad
faith registration and use pursuant to Policy ¶ 4(a)(iii). See Black & Decker
Corp. v. Khan, FA 137223 (Nat. Arb. Forum
Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to
“ensnare those individuals who forget to type the period after the ‘www’
portion of [a] web-address,” which was evidence that the domain name was
registered and used in bad faith); see
also Nat’l Ass’n of Prof’l Baseball
League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003)
(“Typosquatting … is the intentional misspelling of words with [the] intent to
intercept and siphon off traffic from its intended destination, by preying on
Internauts who make common typing errors.
Typosquatting is inherently parasitic and of itself evidence of bad
faith.”).
The Panel finds that Complainant 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 <questaregas.com> and <wwwquestar.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: April 18, 2008.
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