Solar Turbines Incorporated v. miri Maza
Claim Number: FA1904001838989
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie H. Bald of Kelly IP, LLP, Washington DC, USA. Respondent is miri Maza (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solarturbinez.com>, registered with NameCheap, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 16, 2019; the Forum received payment on April 16, 2019.
On April 16, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <solarturbinez.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 April 17, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 7, 2019 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@solarturbinez.com. Also on April 17, 2019, 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 9, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant, Solar Turbines Incorporated, is one of the world’s leading designers and manufacturers of industrial gas turbines and turbo machinery packages for use in the oil and gas and power generation industries.
Complainant has rights in the SOLAR TURBINES mark based upon the registration with the Mexican Institute of Industrial Property (“MIIP”) and otherwise.
Respondent’s <solarturbinez.com> is confusingly similar to Complainant’s mark as Respondent incorporates the entire SOLAR TURBINES mark and merely replaces the letter “s” for the letter “z” while appending the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <solarturbinez.com> domain name. Respondent is not licensed or authorized to use Complainant’s SOLAR TURBINES mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the <solarturbinez.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent fails to make an active use of the disputed domain name. In addition, Respondent uses the domain name in an email address to impersonate Complainant in furtherance of a fraudulent phishing scheme. Further, Respondent engaged in typosquatting by registering a domain name that is a close, phonetically similar misspelling of Complainant’s SOLAR TURBINES mark.
Respondent registered and is using the at-issue domain name in bad faith. Respondent attempts to disrupt Complainant’s business by impersonating Complainant and creating a likelihood of confusion as to the source of Respondent’s fraudulent email phishing scheme. Additionally, Respondent fails to make an active use of the disputed domain name. Moreover, Respondent has engaged in typosquatting. Finally, Respondent had actual knowledge of the SOLAR TURBINES mark when it registered and subsequently used the <solarturbinez.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the SOLAR TURBINES mark through its registration of such mark with a national trademark registrar and otherwise.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the SOLAR TURBINES trademark.
Respondent uses the at-issue domain name to host email used to pass itself off as Complainant in furtherance of a phishing scheme.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of its SOLAR TURBINES trademark with the Mexican Institute of Industrial Property as well as its other registrations worldwide is conclusive evidence of Complainant’s rights in a mark under Policy ¶ 4(a)(i). Further, Complainant demonstrates rights under the Policy by showing that it has strong common-law trademark rights in its SOLAR TURBINES trademark. See Teck Resources Limited and Teck Operaciones Mineras Chile Limitada v. Amexa Ltda., FA 1420960 (Forum Jan. 27, 2012) (finding that a trademark registration with the MIIP was sufficient to establish rights in a mark under Policy ¶ 4(a)(i)).
Additionally, Respondent’s <solarturbinez.com> domain name contains Complainant’s SOLAR TURBINES trademark less its space and misspelled by replacing the mark’s final “s” with a “z.” To complete the domain name Complainant’s misspelled trademark is followed by the top-level domain name “.com.” The slight differences between Complainant’s trademark and the <solarturbinez.com> domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). The Panel thus concludes that Respondent’s <solarturbinez.com> domain name is confusingly similar to Complainant’s SOLAR TURBINES trademark. See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “miri Maza” and the record before the Panel contains no evidence that tends to prove that Respondent is commonly known by the <solarturbinez.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <solarturbinez.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore, Respondent uses the <solarturbinez.com> domain name to pass itself off as Complainant. Respondent used the confusingly similar domain name to send an email originating from <solarturbinez.com> and therein pretended to be an employee of Complainant. Respondent also used Complainant’s trademark and logo in the email, all for the purpose of attempting to defraud one of Complainant’s customers. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also, Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1403001550388 (Forum May 5, 2014) (“Respondent is using the domain name in emails to various IT hardware suppliers in an attempt to impersonate Complainant and defraud its customers. The domain name also resolved to a website similar to Complainant's website. The Panel found that such actions precluded a bona fide offer or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, Policy ¶ 4(b) bad faith circumstances are present and there is additional non-Policy ¶ 4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First and as mentioned above regarding rights and legitimate interests, Respondent uses email originating from the at-issue domain name to pass itself off as Complainant in furtherance of a phishing scheme. Respondent’s use the at-issue domain name to impersonate Complainant and facilitate fraud demonstrates Respondent’s bad faith registration and use of <solarturbinez.com> pursuant to Policy ¶¶ 4(b)(iii) and/or (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”; see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
Next, Respondent’s overt misspelling of Complainant’s trademark in the at-issue domain name shows that Respondent is engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name hoping that internet users will either: 1) inadvertently type the malformed string when searching for products or services related to the domain name’s target trademark; and/or 2) in viewing the domain name will confuse the domain name with its target trademark. Here, in creating the at-issue domain name Respondent misspells Complainant’s SOLAR TURBINES trademark by substituting its final “s” with a “z.” Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent had actual knowledge of Complainant’s rights in the SOLAR TURBINES mark when it registered <solarturbinez.com>. Respondent’s actual knowledge is evident from Respondent’s use of the <solarturbinez.com> domain name to host fraudulent email pretending to be from Complainant. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <solarturbinez.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 9, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page