The Boeing Company v. Host for You c/o Vladimir Snezko
Claim Number: FA1212001473874
Complainant is The Boeing Company (“Complainant”), represented by James L. Vana of Perkins Coie LLP, Washington, USA. Respondent is Host for You c/o Vladimir Snezko (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwboeing.com>, registered with eNom, Inc.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 30, 2012; the National Arbitration Forum received payment on December 4, 2012.
On December 3, 2012, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwboeing.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 December 5, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 2012 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@wwwboeing.com. Also on December 5, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 7, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honourable Neil Anthony Brown QC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant made the following contentions
1. Policy ¶ 4(a)(i): Complainant’s rights and the confusingly similar nature of Respondent’s <wwwboeing.com> domain name.
(i)Complainant owns rights to the BOEING mark in over 30 countries worldwide, including registrations with the United States Patent and Trademark Office (“USPTO”) and in Russia, and uses the mark in the promotion of its airline and aircraft business. These registrations are evidence of Complainant’s rights in the mark.
(ii)Respondent registered the disputed domain name on May 15, 2001.
(iii)Respondent’s disputed domain name is confusingly similar because it only adds “www” to Complainant’s BOEING mark to create the domain name. Past panels have found the “www” prefix to create confusing similarity.
2. Policy ¶ 4(a)(ii): Respondents lack of rights and legitimate interests in the <wwwboeing.com> domain name.
(i) Respondent is not now, and never has been commonly known by the name or nickname of the disputed domain name. The current WHOIS information lists the registrant of record as “Host for You c/o Vladimir Snezko.” Panels have consistently looked to a domain name’s WHOIS records to determine whether the respondent is commonly known by the domain name.
(iii) Respondent’s domain name resolves to a website featuring images of young women, which in turn link to a variety of third-party websites, none of which have any connection to Complainant. Respondent’s likely sole purpose in operating the website is to derive revenue from misdirected Internet traffic. Such a use is not a legitimate noncommercial fair use, nor a bona fide offering of goods and services.
(iv) Respondent’s use of a typosquatted domain name is evidence that Respondent lacks rights or legitimate interests in the domain name.
3. Policy ¶ 4(a)(iii): Respondent’s bad faith use and registration of the <wwwboeing.com> domain name.
(i) Respondent has previously registered domain names which were found to have been used in bad faith by prior UDRP panels. See, e.g., Mattel, Inc. v. Host for You/Vladimir Snezko, FA1432364 (Nat. Arb. Forum, May 4, 2012); Expedia Inc. v. Host for You c/o Vladimir Snezko, FA1191811 (Nat. Arb. Forum, July 7, 2008); Musicians Friend v. Vladimir Snezko, CPR0217 (CPR Institute of Disputed Resolution, August 14, 2002). This is evidence of bad faith and supports the conclusion that Respondent has engaged in a pattern of conduct prohibited by the Policy, which in turn supports the finding that Respondent’s registered and used the <wwwboeing.com> domain name in bad faith.
(ii) Respondent has registered the domain name to misdirect traffic to other websites. The domain name resolves to a series of hyperlinks under pictures of young women.
(iii) Respondent had knowledge of Complainant’s mark when registering the domain name.
(iv) Respondent’s typosquatting shows bad faith in both the registration and use of the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that is the world’s largest manufacturer of jet airliners.
2. Complainant owns rights to the BOEING mark in over 30 countries worldwide, including registrations with the United States Patent and Trademark Office (“USPTO”) and in Russia, and uses the mark in the promotion of its airline and aircraft business.
3. Respondent registered the disputed domain name on May 15, 2001.The domain name is linked to a website which features images of mostly young women, which in turn link to third party websites.
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 first question that arises is whether Complainant has rights in a trademark or service mark. Complainant claims to own rights to the BOEING mark in over 30 countries worldwide, including registrations with the United States Patent and Trademark Office (“USPTO”) and Russia, and Complainant uses the mark in the promotion of its airline and aircraft business. See, e.g., U.S. Reg. No. 882,041 registered on December 9, 1969; and Reg. No. 1,402,994 registered on July 29, 1986. Complainant argues that these registrations are evidence of Complainant’s rights in the mark. The Panel finds that registration with the USPTO establishes Complainant’s rights in the mark, despite the fact Respondent is located in Russia. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). For these reasons, the Panel finds that Complainant has rights in the BOEING mark under Policy ¶ 4(a)(i).
The second question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s BOEING mark. Complainant next argues that Respondent’s <wwwboeing.com> domain name is confusingly similar to the BOEING mark because it only adds “www” before Complainant’s BOEING mark to create the domain name. Past panels have found the “www” prefix to create confusing similarity. The Panel agrees with Complainant’s submissions, and finds that the addition of “www” adds to the confusing similarity between the domain name and the BOEING mark. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”). The Panel also notes that the disputed domain name adds the generic top-level domain (“gTLD”) “.com” to Complainant’s mark, but the addition of the gTLD does not negate any confusing similarity. See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). For these reasons, the Panel finds that Respondent’s <wwwboeing.com> domain name is confusingly similar to the BOEING mark pursuant to Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s BOEING mark and to use it in its domain name, adding only the letters “www” before Complainant’s BOEING mark to create the domain name , thus implying that the domain name is an official domain name of Complainant leading to an official website of Complainant which it is not;
(b) Respondent has then used the domain name to link to a website which features images of mostly young women, which in turn link to third party websites;
(c) Respondent has engaged in these activities without the consent or approval
of Complainant;
(d) Complainant contends that Respondent has never been commonly known by the name or nickname of the <wwwboeing.com> domain name. Complainant notes that the current WHOIS information lists the registrant of record as “Host for You c/o Vladimir Snezko.” Complainant claims that previous panels consistently looked to a domain name’s WHOIS records to determine whether the respondent is commonly known by the domain name. Complainant disavows any authorization or sponsorship of Respondent. The Panel finds that Complainant’s showing of evidence, combined with a lack of any other evidence to connect Respondent with the domain name, proves that Respondent is not commonly known by the <wwwboeing.com> domain name. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark);
(e) Complainant next argues that Respondent’s domain name resolves to a website featuring images of young women, which in turn link to a variety of third-party websites, none of which have any connection to Complainant. Complainant asserts that Respondent’s sole purpose in operating the website is to derive revenue from misdirected Internet traffic. Complainant argues that such use is not a legitimate noncommercial fair use, nor a bona fide offering of goods and services. The Panel notes that the website to which the <wwwboeing.com> domain name resolves features several pages of unrelated images with a wide range of unrelated sub-captions. The Panel finds that Respondent’s use of the <wwwboeing.com> domain name to resolve to a website of unrelated hyperlinks is neither a bona fide offering of goods, nor a legitimate noncommercial or fair use of the disputed domain name. See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy). The Panel also finds that the adult-oriented images and the captions throughout the website illustrate neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Isleworth Land Co. v. Lost In Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (finding that the respondent’s use of its domain name to link unsuspecting Internet traffic to an adult orientated website, containing images of scantily clad women in provocative poses, did not constitute a connection with a bona fide offering of goods or services or a noncommercial or fair use). For these reasons, the Panel finds that Respondent is not using the domain name in furtherance of a Policy ¶ 4(c)(i) bona fide offering of goods, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use;
(f) Complainant also asserts that Respondent’s use of a typosquatted domain name is evidence that Respondent lacks true rights or legitimate interests in the domain name. The Panel notes that the <wwwboeing.com> domain name would resolve to Complainant’s own <boeing.com> domain name if the Internet user typed “www.boeing.com” rather than “wwwboeing.com.” The Panel therefore finds that this minor alteration Respondent made in formulating the disputed domain name is typosquatting, and thus Respondent lacks rights and legitimate interests in the <wwwboeing.com> domain name under Policy ¶ 4(a)(ii). See 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).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant alleges that Respondent has previously registered domain names which were found by prior UDRP panels to have been registered and used in bad faith. See, e.g., Mattel, Inc. v. Host for You/Vladimir Snezko, FA1432364 (Nat. Arb. Forum, May 4, 2012); Expedia Inc. v. Host for You c/o Vladimir Snezko, FA1191811 (Nat. Arb. Forum, July 7, 2008); Musciains Friend v. Vladimir Snezko, CPR0217 (CPR Institute of Disputed Resolution, August 14, 2002). Complainant notes that prior UDRP decisions serve as evidence of repeated bad faith registrations and use of domain names. Complainant argues that this supports the conclusion that Respondent has engaged in a pattern of conduct prohibited by the Policy, which in turn should support the finding that Respondent’s registered and used the <wwwboeing.com> domain name in bad faith. Previous panels have found that a respondent’s registration of a confusingly similar domain to thwart a complainant’s effort to embody their mark in a domain name is proof of bad faith use and registration. See Stevens v. Modern Ltd.-Cayman Web Dev., FA 250005 (Nat. Arb. Forum May 17, 2004) (“Registration and use of a domain name to prevent Complainant from reflecting its mark in a corresponding domain name through a pattern of such conduct evidences bad faith registration and use of a domain name pursuant to Policy 4(b)(ii).”); see also TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”). The Panel agrees and finds that Respondent’s history of bad faith registration shows bad faith use and registration of the <wwwboeing.com> domain name pursuant Policy ¶ 4(b)(ii).
Secondly, Complainant argues that Respondent has registered the domain name to misdirect traffic to other websites. The Panel notes that the domain name resolves to a series of hyperlinks under pictures of young women. The Panel again notes that the website to which the disputed domain resolves contains adult-oriented material and/or unrelated hyperlinks. The Panel finds that Respondent’s efforts to attract confused Internet users into viewing the <wwwboeing.com> domain name constitutes bad faith use and registration. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 16, 2007) (concluding that Internet users would likely be confused as to the source or sponsorship of the <blackstonewine.com> domain name with the complainant because the respondent was redirecting Internet users to a website with links unrelated to the complainant and likely receiving click-through fees in the process); 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). Therefore, the Panel finds that Respondent intended to attract confuse Internet users for its own commercial gain pursuant to Policy ¶ 4(b)(iv).
Thirdly, Complainant asserts that Respondent had knowledge of Complainant’s mark when registering the domain name. Complainant alleges that its BOEING mark is well known throughout the world, including Respondent’s country of origin—Russia. Complainant concludes that because of this it is inconceivable that Respondent did not know of Complainant or its BOEING mark prior to the registration of the <wwwboeing.com> domain name. The Panel here finds that that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and that such actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Fourthly, Complainant asserts that Respondent’s typosquatting behavior shows bad faith in both the registration and use of the domain name. The Panel notes that the disputed domain name would resolve to Complainant’s <boeing.com> with the addition of a period between “www” and “boeing” in the disputed domain name. Previous panels have found that taking advantage of such a minor and common typographical error indicated the bad faith use and registration by a respondent. 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. For these reasons, the Panel finds bad faith use and registration under Policy ¶ 4(a)(iii).
Fifthly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the BOEING mark and in view of the conduct that Respondent engaged in when using it, Respondent registered and used the disputed domain name in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwboeing.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: January 7, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page