Questar Corporation v. Domain Drop S.A.
Claim Number: FA0610000819503
Complainant is Questar Corporation (“Complainant”), represented by Jonathan W. Richards, of Workman Nydegger, 1000 Eagle Gate Tower, 60 East South Temple, Salt Lake City, UT 84111. Respondent is Domain Drop S.A. (“Respondent”), PO Box 556, Main Street, Charlestown West Indies, KN.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <wwwquestargas.com> and <questarexploration.com>, registered with Domaindoorman, Llc, Capitoldomains, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 16, 2006; the National Arbitration Forum received a hard copy of the Complaint on October 16, 2006.
On October 18, 2006,Oct 19, 2006, Domaindoorman, Llc, Capitoldomains, Llc confirmed by e-mail to the National Arbitration Forum that the <wwwquestargas.com> and <questarexploration.com> domain names are registered with Domaindoorman, Llc, Capitoldomains, Llc and that Respondent is the current registrant of the names. Domaindoorman, Llc, Capitoldomains, Llc has verified that Respondent is bound by the Domaindoorman, Llc, Capitoldomains, Llc registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 9, 2006 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@wwwquestargas.com and postmaster@questarexploration.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 15, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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." 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. Respondent’s <wwwquestargas.com> and <questarexploration.com> domain names are confusingly similar to Complainant’s QUESTAR GAS mark.
2. Respondent does not have any rights or legitimate interests in the <wwwquestargas.com> and <questarexploration.com> domain names.
3. Respondent registered and used the <wwwquestargas.com> and <questarexploration.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Questar Corporation, is a leader in gas and oil exploration. In connection with the provision of these services, Complainant has registered a number of trade and service marks with the United States Patent and Trademark Office (“USPTO”), including the QUESTAR GAS mark (Reg. No. 2,298,772 issued December 7, 1999).
Respondent registered the <wwwquestargas.com> domain name on April 13, 2006 and the <questarexploration.com> domain name on March 20, 2006. Both disputed domain names resolve to websites featuring commercial links to other websites, some of which offer competing products and services.
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."
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. 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 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.
Complainant has established rights in the QUESTAR GAS mark through registration of the mark with the USPTO. 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.”).
Complainant asserts that the <wwwquestargas.com> and <questarexploration.com> domain names are confusingly similar to its QUESTAR GAS mark. The <wwwquestargas.com> disputed domain name contains Complainant’s QUESTAR GAS mark in its entirety and the prefix “www.” The <questarexploration.com> domain name replaces the term “gas” with the generic term “exploration,” which is obviously related to Complainant’s business. The Panel finds the <wwwquestargas.com> and <questarexploration.com> domain names to be confusingly similar to Complainant’s QUESTAR GAS mark for the purposes of Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant bears the initial burden of proof to make a prima facie case showing that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant establishes such a showing, the burden shifts to Respondent to come forward with evidence that refutes Complainant’s assertions and evidentiary submissions. The Panel finds that Complainant has fulfilled its initial burden through its uncontested assertions and evidentiary submissions. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“[I]t 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.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant asserts that Respondent is not commonly known by the disputed domain name. In light of the lack of evidence to suggest otherwise, the Panel finds that Respondent is not commonly known by the <wwwquestargas.com> and <questarexploration.com> domain names or any variation thereof pursuant to Policy ¶ 4(c)(ii). Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <wwwquestargas.com> and <questarexploration.com>
domain names resolve to websites that offer services in competition with the
Complainant. Thus, the Panel finds that
such use by Respondent does not represent either a bona fide offering of
goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii). DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is
not using the disputed domain name in connection with a bona fide offering of
goods and services because Respondent is using the domain name to divert
Internet users to <visual.com>, where services that compete with
Complainant are advertised.”); see also Oregon State Bar v. A Special Day,
Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of
legal services and sale of law-related books under Complainant's name is not a
bona fide offering of goods and services because Respondent is using a mark
confusingly similar to the Complainant's to sell competing goods.”).
The Panel finds that
Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the <wwwquestargas.com> and <questarexploration.com> domain names to operate websites that provide Internet users with links to various competing websites. The Panel finds that Respondent’s use constitutes a disruption of Complainant’s business and evinces bad faith pursuant to Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Furthermore, Respondent’s use will likely cause confusion as to Complainant’s sponsorship of and affiliation with the resulting websites. Internet users will likely associate the resulting websites with Complainant’s business, thereby creating confusion among users who are likely to believe the resulting websites are affiliated with Complainant. The Panel finds that such use of a domain name for Respondent’s own commercial gain is additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwquestargas.com> and <questarexploration.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce Meyerson, Panelist
Dated: November 20, 2006
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