National Fuel Gas Company v. Raina Klisch / infore
Claim Number: FA1604001670902
Complainant is National Fuel Gas Company (“Complainant”), represented by Bryce J. Maynard of Buchanan Ingersoll & Rooney PC, Virginia, USA. Respondent is Raina Klisch / infore (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nationalfuelgas-corp.com> ('the Domain Name'), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 18, 2016; the Forum received payment on April 18, 2016.
On April 20, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <nationalfuelgas-corp.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 April 21, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 2016 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@nationalfuelgas-corp.com. Also on April 21, 2016, 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 May 16, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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
The Complainant has a registered trade mark NATIONAL FUEL in the USA for utility and natural gas services which it has provided since at least 1974.
The Domain Name, registered in 2016, is virtually identical to Complainant's registered mark, merely adding the generic term 'gas' and 'corp' and the top level domain .com, none of which is sufficient to distinguish the Domain Name from the Complainant's mark. Adding 'gas' in fact increases confusion since Complainant's full name is National Fuel and Gas and the Complainant and its mark are strongly associated with natural gas and related services.
Respondent has never used the Domain Name in connection with a bona fide offering of goods and services. The Domain Name is currently inaccessible and does not resolve to an active web site and does not appear to have ever done so. Passive holding of a Domain Name is a basis for finding lack of legitimate interests or rights in the Domain Name. Respondent is not commonly known by the Domain Name and the Complainant has never authorised or licensed Respondent to use Complainant's mark or name in any way. Respondent has not made a non-commercial or fair use of the Domain Name due to lack of use.
The Respondent has registered and is using the Domain Name in bad faith. Failure to use a domain name can, in itself, demonstrate bad faith registration and use under the Policy. Further Respondent has used the Domain Name to send out fraudulent e mail messages purporting to be from the Complainant (seeking a price quote for laptops). Use for impersonation in this way is use in bad faith.
B. Respondent
Respondent did not submit an official Response in this proceeding.
The Complainant has a registered trade mark NATIONAL FUEL in the USA for utility and natural gas services which it has provided since at least 1974.
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.”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's NATIONAL FUEL mark, the generic terms 'gas' (which is directly related to the Complainant's business) and ''corp', a hyphen and the gTLD .com.
Prior panels have found that adding a generic term does little to remove confusing similarity from a disputed mark. See Arthur Guiness Son & Co. (Dublin) Ltd. V. Healy/BOSTH D2001-0026 (WIPO Mar 23, 2001)(Finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term.); see also Health Devices Corp. v. Aspen STC, FA 158254 (Forum July 1, 2003) ('The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i); See also Red Hat Inc v. Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph ¶ 4(a)(i) of the Policy has been satisfied.
Complainant maintains that the Respondent is not using the Domain Name to offer bona fide goods and services and has no permission from the Complainant to use its mark.
Respondent's use of the Domain Name to deceive Internet users in e-mails is not bona fide offering of goods and services under Policy ¶ 4(c)(i) not a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).
As such the Panellist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
The Respondent is clearly passing itself off as the Complainant and using the Complainant's mark in e-mails to deceive. See SHUAA Capital psc v Oba Junkie/shuaa capital psc, FA 14009001581255 (Forum October 29, 2014) (The Panel finds that Respondent's use of the domain name's e mail suffix for fraudulent purposes illustrates Policy 4(a)(iii) bad faith.) The Panel finds the use of the Domain Name is confusing and deceptive and disruptive to the Complainant's business.
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 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 <nationalfuelgas-corp.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 20, 2016
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