Michelin North America, Inc. v. Micheal Robert
Claim Number: FA0902001245628
Complainant is Michelin
North America, Inc. (“Complainant”), represented by Neil M. Batavia, of Dority & Manning, South
The domain names at issue are <michelins.net> and <wwwmichelin.net>, registered with Onlinenic, 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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On February 11, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 3, 2009 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 email@example.com and firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <michelins.net> and <wwwmichelin.net> domain names are confusingly similar to Complainant’s MICHELIN mark.
2. Respondent does not have any rights or legitimate interests in the <michelins.net> and <wwwmichelin.net> domain names.
3. Respondent registered and used the <michelins.net>and <wwwmichelin.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Michelin North America, Inc., designs, manufactures, and markets tires for several vehicle industries. Complainant has registered its MICHELIN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 892,045 issued June 2, 1970).
Respondent registered the disputed <michelins.net>and
<wwwmichelin.net> domain names 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.
rights in the MICHELIN mark, which was registered with the USPTO. The Panel finds that Complainant has
sufficient rights in the mark through this registration under Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb.
Forum Apr. 26, 2006) (finding that the complainant had established rights in
the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the
USPTO); see also Microsoft Corp. v. Burkes, FA 652743 (Nat.
Respondent’s <michelins.net>and <wwwmichelin.net>
domain names contain Complainant’s MICHELIN mark and add either the prefix
“www” or the letter “s,” while both include the generic top-level domain
“.net.” The Panel finds that none of the
alterations sufficiently distinguish Complainant’s mark and therefore the
disputed domain names are confusingly similar to Complainant’s mark under Policy
¶ 4(a)(i). See Trip Network Inc. v.
Alviera, FA 914943 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied with respect to each of the disputed domain names.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain names. Because Complainant has set forth a sufficient prima facie case, Respondent bears the burden of demonstrating that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it 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.”).
There is no evidence within the record that allows the
inference that Respondent is or ever was commonly known by the disputed domain
names. The WHOIS information lists
Respondent as “Michael Robert.” Moreover,
Complainant has not licensed or permitted Respondent to use its marks in any
fashion. Therefore, the Panel finds that
Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the
respondent was not commonly known by the <lilpunk.com> domain name as
there was no evidence in the record showing that the respondent was commonly
known by that domain name, including the WHOIS information as well as the complainant’s
assertion that it did not authorize or license the respondent’s use of its mark
in a domain name); see also Ian Schrager Hotels, L.L.C. v.
Taylor, FA 173369 (Nat. Arb. Forum
Respondent’s disputed domain names resolve to websites that feature links to unrelated third parties, including parties which compete with Complainant. Respondent presumably receives referral fees for the links provided on the corresponding websites. The Panel finds that Respondent has not created 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). See Bank of Am. Corp. v. Northwest Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Complainant has asserted that Respondent engaged in typosquatting by registering the instant disputed domain names. Typosquatting occurs when a domain name is registered with the intent of diverting Internet users by way of common typing errors to a different website. Here, Respondent simply misspelled Complainant’s mark or added the generic prefix “www” without the customary punctuation. The Panel therefore finds that Respondent’s use of typosquatting is itself evidence that Respondent lacks rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent intended to create a likelihood of confusion as to Complainant’s mark and the disputed domain names for commercial gain, given the presence of commercial links on the corresponding websites. The Panel therefore finds that Respondent has registered and used the disputed domain names in bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites).
The Panel finds that Respondent’s engagement in
typosquatting constitutes evidence of bad faith registration and use pursuant
to Policy ¶ 4(a)(iii).
See 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 <michelins.net> and <wwwmichelin.net> domain names be TRANSFERRED from Respondent to Complainant.
Dated: March 24, 2009
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