Hewlett-Packard Development Company, L.P. and Hewlett-Packard Company v. Igor Pinchevskiy
Claim Number: FA0912001298331
Complainants are Hewlett-Packard
Development Company, L.P. and
Hewlett-Packard Company (collectively “Complainant”), represented by James F. Struthers, of Richard Law Group, Inc.,
REGISTRAR
The domain names at issue are <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 4, 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 postmaster@hpserverdrives.com, postmaster@hpserverharddrives.com, postmaster@hpserversharddrives.com, and postmaster@hpserverparts.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.com> domain names are confusingly similar to Complainant’s HP mark.
2. Respondent does not have any rights or legitimate interests in the <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.com> domain names.
3. Respondent registered and used the <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Hewlett-Packard Development Co., L.P. and Hewlett-Packard
Co. produce, market, and sell computers, printers, servers, and other related
products. Complainant employs over
321,000 people and serves more than a billion customers in 170 countries. Complainant began offering these products in
1941, under Complainant’s HP mark.
Complainant holds numerous trademark registrations with the United
States Patent and Trademark Office (“USPTO”) for its HP mark (e.g., Reg. No. 1,116,835 issued
Respondent, Igor Pinchevskiv, registered the <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>,
and <hpserverparts.com> 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.
Trademark registration with the USPTO is sufficient to
establish rights in a trademark pursuant to Policy ¶ 4(a)(i). See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum
Complainant alleges Respondent’s <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>,
and <hpserverparts.com> domain names are confusingly
similar to Complainant’s HP mark. The
disputed domain names contain Complainant’s entire HP mark and add either the
descriptive term “server” or “servers,” which describe Complainant’s server
products. The disputed domain names
further add a second or third descriptive term which relates to Complainant’s
technology products: “drives,” “hard drives,” or “parts.” Finally, the disputed domain names add the
generic top-level domain (“gTLD”) “.com.”
Despite these differences the domain names in dispute are confusingly
similar to Complainant’s mark. See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5,
2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in
its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion
to complainant’s business.”); see also
Marriott Int’l, Inc. v. Café au lait,
FA 93670, (Nat. Arb. Forum
The Panel finds Complainant’s has satisfied Policy ¶ 4(a)(i).
Complainant has alleged Respondent does not have rights or legitimate interests in the <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.com> domain names. 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 Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”).
Complainant contends Respondent is not commonly known by the <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.com> domain names pursuant to Policy ¶ 4(c)(ii). Complainant provides the WHOIS information which identifies the disputed domain names’ registrant as “Igor Pinchevskiv.” Complainant asserts Respondent is not affiliated with Complainant and that Respondent is not licensed by Complainant to use Complainant’s HP mark. Complainant claims Respondent is also not an authorized vendor, supplier, or distributor of Complainant’s computer related products and services. Respondent has offered no evidence, and there is no evidence in the record, suggesting that Respondent is commonly known by the disputed domain names. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question). Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).
Respondent is using the <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.com> domain names to redirect Internet users interested in Complainant’s computer related technology products to websites containing a third-party hyperlink directory, including hyperlinks to Complainant’s competitors. The Panel infers that Respondent profits from receiving click-through fees. The Panel finds Respondent’s use of domain names that are confusingly similar to Complainant’s HP mark to redirect Internet users for this purpose is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See 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); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.com> domain names, which are confusingly similar to Complainant’s HP mark, to resolve to websites featuring hyperlinks to Complainant’s competitors in the computer related technology products industry. The Panel finds that this use of the disputed domain names constitutes a disruption of Complainant’s computer related technology products business, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant alleges Respondent receives click-through fees
from displaying the hyperlinks of Complainant’s competitors and other unrelated
third-parties. Respondent is using the
confusingly similar disputed domain names to profit from Internet users’
confusion as to Complainant’s affiliation with the disputed domain name, resolving
website, and featured hyperlinks. The
Panel finds Respondent’s use of the disputed domain names constitutes bad faith
registration and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v.
Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding
that the respondent engaged in bad faith registration and use by using a domain
name that was confusingly similar to the complainant’s mark to offer links to
third-party websites that offered services similar to those offered by the
complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94381
(Nat. Arb. Forum
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hpserverdrives.com>, <hpserverharddrives.com>, <hpserversharddrives.com>, and <hpserverparts.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 25, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum