Evan Conklin Plumbing & Heating Inc. v. Frank D'orr
Claim Number: FA1008001338499
Complainant is Evan Conklin Plumbing & Heating Inc., (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <seattleplumbingcompany.com> and <seattleplumb.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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 2, 2010.
On August 3, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <seattleplumbingcompany.com> and <seattleplumb.com> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 10, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 30, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@seattleplumbingcompany.com and postmaster@seattleplumb.com by e-mail. Also on August 10, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 9, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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" through submission of a Written Notice, as defined in Rule 1. 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 <seattleplumbingcompany.com> domain name is identical to Complainant’s SEATTLE PLUMBING COMPANY mark.
Respondent’s <seattleplumb.com> domain name is confusingly similar to Complainant’s SEATTLE PLUMBING COMPANY mark.
2. Respondent does not have any rights or legitimate interests in the <seattleplumbingcompany.com> and <seattleplumb.com> domain names.
3. Respondent registered and used the <seattleplumbingcompany.com> and <seattleplumb.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Evan Conklin
Plumbing & Heating Inc., is a provider of various plumbing related goods
and services within the city of
Respondent, Frank D'orr, registered the <seattleplumbingcompany.com> and <seattleplumb.com> domain names on February 17, 2010. Respondent’s disputed domain names resolve to Respondent’s website located at <handymankingcounty.com> which offers plumbing services in competition with Complainant.
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 submits evidence to show that it has rights in
its SEATTLE PLUMBING COMPANY mark through its State of
Complainant has
submitted evidence showing that it registered its SEATTLE PLUMBING COMPANY mark
with the State of
Complainant
contends that the <seattleplumbingcompany.com> is identical to its SEATTLE
PLUMBING COMPANY mark because the domain name merely adds the generic top-level
domain (“gTLD”) “.com” and removes the spaces between the terms of the
mark. The Panel finds that Respondent’s
disputed domain name is identical to Complainant’s mark under Policy ¶
4(a)(i). See
Complainant further argues
that the <seattleplumb.com> domain name is confusingly
similar to Complainant’s SEATTLE PLUMBING COMPANY mark. Complainant argues that the disputed domain
name incorporates an abbreviation of the word “plumbing” and deletes the term
“company” from Complaiant’s mark and is therefore not distinct from
Complainant’s mark. The Panel agrees and
finds that the <seattleplumb.com>
domain name is confusingly similar to Complainant’s SEATTLE PLUMBING COMPANY
mark under Policy ¶ 4(a)(i). See Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum
June 2, 2003) (“Notwithstanding the analysis by Respondent, ‘modprops’ is a
contraction or shorthand for ‘Modern Props.’ ‘Mod’ cononotes [sic] ‘modern’
regardless of any other dictionary meanings, so the names are substantially
similar in meaning.”); see also Minn.
State Lottery v. Mendes, FA 96701 (Nat. Arb. Forum Apr. 2, 2001) (finding
that the <mnlottery.com> domain name was confusingly similar to the
complainant’s MINNESOTA STATE LOTTERY mark under Policy ¶ 4(a)(i)); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb.
Forum Feb. 13, 2007) (holding that “the Domain Name is confusingly similar to
Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the
descriptive term ‘personal.’”); see also
Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb.
Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic
top-level domain, such as ‘.com,’ ‘.net,’
‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed
domain name [<americangenerallifeinsurance.com>] is confusingly similar to the
complainant’s [AMERICAN GENERAL] mark.”); see
also Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not possess rights and legitimate interests in the <seattleplumbingcompany.com> and <seattleplumb.com> domain names under Policy ¶ 4(a)(ii). Complainant is required to produce a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden of proof shifts to Respondent to display that it does possess rights and legitimate interests in the disputed domain names. 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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds that Complainant has established a prima facie case that Respondent lacks rights and legitimate interests in the <seattleplumbingcompany.com> and <seattleplumb.com> domain names. Respondent has failed to respond to these proceedings, and as such the Panel finds that it may infer that Respondent lacks rights and legitimate interests in the disputed domain names. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); 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.”). However, the Panel will analyze the evidence on record to determine whether Respondent has rights and legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known by the disputed domain names. The WHOIS information for each domain name identifies “Frank D’orr” as the registrant. Without evidence in the record to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Complainant argues that Respondent is using the disputed domain names to funnel traffic to Respondent’s competing website located at <handymankingcounty.com> which offers plumbing services in competition with Complainant. Complainant contends that Respondent’s use of the domain names to send Internet traffic to Respondent’s competing business proves that Respondent does not have rights and legitimate interests in the domain names. The Panel agrees and finds that Respondent’s use of the disputed domain names to send Internet users to Respondent’s own business website that competes with Complainant in the plumbing industry is not 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 Am. Int’l Group, Inc. v. Benjamin, FA 944242 (Nat. Arb. Forum May 11, 2007) (Panelist Tyrus R. Atkinson, Jr., dissenting) (finding that the respondent’s use of a confusingly similar domain name to advertise real estate services which competed with the complainant’s business did not constitute 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 also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the disputed domain names to divert Internet users seeking Complainant’s plumbing business to Respondent’s competing business. The Panel infers that such use results in a disruption of Complainant’s business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”).
Further, the Panel finds that Respondent is misappropriating Complainant’s mark in order to attract Internet users to Respondent’s competing website where Respondent markets and sells its plumbing services to the public. Therefore, the Panel finds that Respondent registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where the respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of the complainant); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant).
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 <seattleplumbingcompany.com> and <seattleplumb.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: September 16, 2010
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