Honeywell International Inc. v. Web Advertising, Corp.
Claim Number: FA0802001154300
Complainant is Honeywell International Inc. (“Complainant”), represented by Peter
S. Sloane, of Ostrolenk, Faber, Gerb & Soffen, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <honywell.net>, registered with Belgiumdomains, LLC.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 6, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 2008 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@honywell.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 1, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <honywell.net> domain name is confusingly similar to Complainant’s HONEYWELL mark.
2. Respondent does not have any rights or legitimate interests in the <honywell.net> domain name.
3. Respondent registered and used the <honywell.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Honeywell International Inc., is a diversified
technology and manufacturing leader of aerospace products and services, control
technologies for buildings, homes and industry, automotive products, power generation
systems, specialty chemicals, fibers, plastics and advanced materials. Complaint owns a number of trademark
registrations with the United States Patent and Trademark Office for the
HONEYWELL mark (“USPTO”) (i.e. Reg. No. 527,813 issued
Respondent registered the <honywell.net>
domain name
on
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. 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 and is being used in bad faith.
Complainant has registered the HONEYWELL mark with the
USPTO, and thus has established rights to the mark pursuant to Policy ¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick,
FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under
Respondent’s <honywell.net> domain name is confusingly
similar to Complainant’s mark under Policy ¶ 4(a)(i). The Panel finds that a disputed domain name
which contains a misspelled mark by one letter creates no distinction between
the mark and the disputed domain name. See Reuters Ltd. v. Global Net
2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name
which differs by only one letter from a trademark has a greater tendency to be
confusingly similar to the trademark where the trademark is highly
distinctive); see also State Farm
Mut. Auto. Ins. Co. v. Try Harder &
The Panel finds that Policy ¶ 4(a)(i) as been satisfied.
Complainant contends that Respondent lacks all rights and
legitimate interests in the <honywell.net>
domain name. Once Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to prove that it does have rights
or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds in this case that Complainant
has established a prima facie
case. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel chooses to examine the evidence on record against the applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Complainant contends that Respondent is neither commonly
known by the <honywell.net>
domain name nor licensed to register domain names using the HONEYWELL
mark. Respondent’s WHOIS information
lists Respondent as “Web Advertising, Corporation,” therefore lacking any
information with defining characteristics relating it to the disputed domain
name. Therefore, pursuant to Policy ¶
4(c)(ii), the Panel finds that Respondent lacks all
rights and legitimate interests in the disputed domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Forum
In addition, Respondent is not actively using the disputed domain name. There is no evidence on record that Respondent intends to use the disputed domain name. As a result, the Panel finds that Respondent has not made a bona fide offering of good or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that the respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and the respondent is not commonly known by the domain name).
In addition, Respondent lacks all rights and legitimate
interests because the disputed domain name is a misspelling of Complainant’s
mark. The Panel finds that a misspelling
of a complainant’s mark as a disputed domain name amounts to a form of
typosquatting and is therefore not a bona
fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See Nat’l Ass’n of Prof’l Baseball Leagues, Inc.
v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a
means of redirecting consumers against their will to another site, does not
qualify as a bona fide offering of goods or services, whatever may be the goods
or services offered at that site.”); see
also Medline, Inc. v. Domain
Active Pty. Ltd., FA 139718
(Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent has registered the <honywell.net> domain name but has not actively used the disputed domain name. The Panel finds that such non-use consitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that failure to make an active use of a domain name permits an inference of registration and use in bad faith); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
In addition, Respondent has a long history of registering
domain names infringing upon the trademark rights of others, and has been
ordered by previous UDRP panels to transfer the disputed domain names to the respective
complainants. The Panel finds that a
pattern of registration and use of domain names with established marks is
further evidence of bad faith pursuant to Policy ¶ 4(b)(ii). See
Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234
(Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶
4(b)(ii) by registering multiple domain names that infringe upon others’ famous
and registered trademarks); see also EPA
European Pressphoto Agency B.V. v.
The Panel finds that Respondent’s persistent use of
typosquatting is further evidence of bad faith registration of use pursuant to
Policy ¶ 4(a)(iii).
See Canadian Tire Corp. v.
domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May
22, 2003) (finding the respondent registered and used the domain name in
bad faith because the respondent “created ‘a likelihood of confusion with the
complainant’s mark as to the source, sponsorship, affiliation, or endorsement
of the Respondent’s web site or location’. . . through Respondent’s persistent
practice of ‘typosquatting’”); see also
Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
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 <honywell.net> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: April 14, 2008
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