Questar Gas Company v. David Amberson
Claim Number: FA0902001246226
Complainant is Questar Gas Company (“Complainant”), represented by Tracey
The domain name at issue is <thermawise.com>, registered with Godaddy.com, 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 10, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 2, 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 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <thermawise.com> domain name is confusingly similar to Complainant’s THERMWISE mark.
2. Respondent does not have any rights or legitimate interests in the <thermawise.com> domain name.
3. Respondent registered and used the <thermawise.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Questar Gas Company, registered its THERMWISE
mark with the United States Patent and Trademark Office (“USPTO”) (Reg.
No. 3,526,820 issued
Respondent registered the disputed <thermawise.com> 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 submitted evidence of its trademark registrations
with the USPTO for its THERMWISE mark.
The Panel therefore finds that Complainant has sufficient rights in the
mark under Policy ¶ 4(a)(i). See
Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum
domain name includes Complainant’s mark, while adding an “a” and the generic
top-level domain “.com.” Neither of
these alterations carries any meaningful distinction. See
Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the
complainant’s mark does not remove the respondent’s domain names from the realm
of confusing similarity in relation to the complainant’s mark pursuant to
Policy ¶ 4(a)(i).”); see also Trip
Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and
legitimate interests in the disputed
domain name. Complainant must
successfully assert a sufficient prima
facie case supporting its allegations before Respondent has the burden of
demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its
burden, and therefore Respondent must demonstrate its rights or legitimate
interests under Policy ¶ 4(c). See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
There is no evidence in the record, including the WHOIS information, to conclude that Respondent is commonly known by the disputed domain name. Moreover, Complainant contends that Respondent is not a licensee of Complainant, and that Respondent is not authorized to register or use the disputed domain name or the THERMWISE mark. Therefore, the Panel finds that Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant notes that Respondent offered the disputed
domain name for sale to Complainant for an amount beyond the registration
costs. Complainant also argues that
Respondent admitted to no plan to use the disputed domain name other than a
potential future use to sell energy heaters, and that Respondent did not
provide Complainant with requested evidence of these plans. The Panel finds that Respondent has not
engaged in 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), and that Respondent’s offer to sell the disputed
domain name evidences its lack of rights and legitimate interests under Policy
¶ 4(a)(ii). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr.
25, 2007) (concluding that a respondent’s willingness to sell a domain name to
the complainant suggests that a respondent has no rights or legitimate
interests in that domain name under Policy ¶ 4(a)(ii)); see also American Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb.
Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in
the domain name is further evidenced by Respondent’s attempt to sell its domain
name registration to Complainant, the rightful holder of the RED CROSS mark.”);
Household Int’l, Inc. v. Cyntom Enters.,
FA 95784 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent primarily intended a sale of
the disputed domain name upon registering said domain name, as Respondent made
no other use of the domain and has not submitted any evidence to indicate
otherwise. Respondent has engaged in bad
faith registration and use under Policy ¶ 4(b)(i). See
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 <thermawise.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: March 25, 2009
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