Solvay
Claim Number: FA0706001011876
PARTIES
Complainant is Solvay S.A.,
(“Complainant”) represented by Janet F. Satterthwaite, of Venable LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solvay.us>, registered with Go Daddy
Software, Inc.
PANEL
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.
James A. Crary as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on June 19, 2007;
the Forum received a hard copy of the Complaint on June 20, 2007.
On June 20, 2007, Go Daddy Software, Inc. confirmed by e-mail to
the Forum that the <solvay.us> domain name is registered
with Go Daddy Software, Inc. and that
Respondent is the current registrant of the name. Go Daddy
Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution
Policy (the “Policy”).
On June 22, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 12, 2007 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
On July 11, 2007, Respondent requested additional time to file a response
to the Complaint. Respondent’s request
was granted by the National Arbitration Forum on July 12, 2007, extending the
date by which Respondent could file a timely response to July 26, 2007.
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On August 1, 2007,
pursuant to Complainant’s request to have the dispute decided by
a single-member Panel, the Forum appointed James A. Crary 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. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <solvay.us> domain name is identical to Complainant’s SOLVAY mark.
2.
Respondent does not have any rights or
legitimate interests in the <solvay.us> domain name.
3.
Respondent registered and used the <solvay.us>
domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Solvay S.A., is a multi-billion
dollar global organization that is active in the chemical, pharmaceutical,
plastic, and processing sectors.
Complainant employs nearly 30,000 people in fifty countries and operates
a website at the <solvay.com> domain name. In connection with its goods and services,
Complainant uses the SOLVAY mark, which it has registered with multiple
trademark authorities, including the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 1,432,663 issued March 17, 1987).
Respondent registered the <solvay.us>
domain name on May 3, 2002. Respondent’s
disputed domain name resolves to a website that displays hyperlinks for various
third-party websites, some of which are in direct competition with
Complainant.
DISCUSSION
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 the 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 (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 or is
being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
The Panel finds that Complainant’s registration of the SOLVAY mark with
the USPTO sufficiently establishes rights in the mark for the purposes of
Policy ¶ 4(a)(i).
See Am. Int’l Group, Inc. v. Morris, FA
569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has
established rights in the AIG mark through registration of the mark with
several trademark authorities throughout the world, including the United States
Patent and Trademark office (‘USPTO’)… .”); see also Ameridream, Inc. v. Russell, FA 677782 (Nat. Arb. Forum May
24, 2006) (holding that with the complainant’s registration of the AMERIDREAM
mark with the USPTO, the complainant had established rights in the mark
pursuant to UDRP ¶ 4(a)(i)).
Additionally, the <solvay.us> domain name is identical to Complainant’s SOLVAY mark under Policy ¶ 4(a)(i) as the disputed domain name contains Complainant’s mark in its entirety with the addition of the country-code top-level domain (“ccTLD”) “.us.” The addition of a ccTLD does not make the disputed domain name sufficiently distinct as a top-level domain is required of all domain names. See Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights
or Legitimate Interests
Under Policy ¶ 4(a)(ii), Complainant must present a prima facie case that Respondent lacks rights and legitimate interests in the <solvay.us> domain name. Once Complainant establishes such a case, the burden shifts to Respondent to demonstrate rights and legitimate interests with respect to the disputed domain name. The Panel finds that Complainant has met its burden, and therefore has shifted the burden to Respondent. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also 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 [UDRP], 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 [UDRP] ¶ 4(a)(ii).”).
Because Complainant has established rights in the SOLVAY mark and Respondent has not come forward with any evidence showing it is the owner or beneficiary of a mark identical to the <solvay.us> domain name, Complainant has satisfied Policy ¶ 4(c)(i). See Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because Respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)); see also Meow Media Inc. v. Basil, Inc., FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that Respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name).
Moreover, there has been no evidence presented that Respondent is commonly known by the <solvay.us> domain name, or that Respondent is authorized to use Complainant’s mark in any way. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Brown v. Sarrault, FA 99584 (Nat. Arb. Forum Oct. 16, 2001) (finding that the respondent was not commonly known by the <mobilitytrans.com> domain name because it was doing business as “Mobility Connections”); see also 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).
Respondent is using the <solvay.us> domain name to display a
website that has hyperlinks to various third-party websites, some of which are
in direct competition with Complainant.
The Panel infers that Respondent benefits from these hyperlinks through
the earning of click-through fees.
Accordingly, the Panel finds such use of the <solvay.us> domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii) nor
a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See Black & Decker Corp.
v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24,
2002) (holding that the respondent’s use of the disputed domain name to
redirect Internet users to commercial websites, unrelated to the complainant
and presumably with the purpose of earning a commission or pay-per-click
referral fee did not evidence rights or legitimate interests in the domain
name); see also 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).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Registration
and Use in Bad Faith
The Panel finds evidence of bad faith
registration and use under Policy ¶ 4(b)(iv), as Respondent is presumably
profiting from the likelihood of confusion that exists from the use of the
SOLVAY mark in the <solvay.us>
domain name. See 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.”); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat.
Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed
Internet users seeking the complainant’s site to its own website for commercial
gain).
Moreover, the Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to a website that displays hyperlinks to various third-party websites, some of which are in direct competition with Complainant, is a disruption of Complainant’s business, and therefore qualifies as bad faith registration and use under Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO 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 UDRP ¶ 4(b)(iii)).
The Panel finds that
Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Complainant having established all three
elements required under the usTLD Policy, the Panel concludes that relief shall
be GRANTED.
Accordingly, it is Ordered that the <solvay.us> domain name be TRANSFERRED from Respondent to
Complainant.
James A. Crary, Panelist
Dated: August 13, 2007
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