Questar Corporation v. Above.com PTY. LTD / Domain Privacy
Claim Number: FA1201001424468
Complainant is Questar Corporation (“Complainant”), represented by Tracey Harrach of Maschoff Gilmore & Israelsen, Utah, USA. Respondent is Above.com Pty. Ltd / Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <questarsgas.com>, registered with Key-Systems GMBH.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 13, 2012; the National Arbitration Forum received payment on January 13, 2012.
On January 18, 2012, Key-Systems GMBH confirmed by e-mail to the National Arbitration Forum that the <questarsgas.com> domain name is registered with Key-Systems GMBH and that Respondent is the current registrant of the name. Key-Systems GMBH has verified that Respondent is bound by the Key-Systems GMBH registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 20, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 9, 2012 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@questarsgas.com. Also on January 20, 2012, 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 February 14, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <questarsgas.com> domain name is confusingly similar to Complainant’s QUESTAR GAS mark.
2. Respondent does not have any rights or legitimate interests in the <questarsgas.com> domain name.
3. Respondent registered and used the <questarsgas.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Questar Corporation, provides natural gas and related services to more than 900,000 customers in the United States. Complainant owns several trademark registrations with the United States Patent and Trademark Office ("USPTO") for its QUESTAR GAS mark (e.g., Reg. No. 2,300,595 registered December 14, 1999).
Respondent, Above.com Pty. Ltd / Domain Privacy, registered the <questarsgas.com> domain name on March 31, 2011. Respondent's domain name resolves to a website featuring a commercial search engine and various third-party links to unrelated business entities.
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 presents various trademark registrations that it owns with the USPTO for the QUESTAR GAS mark (e.g., Reg. No. 2,300,595 registered December 14, 1999). The Panel finds this evidence sufficient for Complainant to establish rights in its mark under Policy ¶ 4(a)(i), regardless of Respondent's location. See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Further, Complainant alleges that the <questarsgas.com> domain name is confusingly similar to Complainant’s QUESTAR GAS mark. The Panel notes that the domain name removes the space between the terms of the mark, while adding both the letter "s" and the generic top-level domain ("gTLD") ".com." The Panel finds that these changes do not change the fact that the <questarsgas.com> domain name is confusingly similar to Complainant's QUESTAR GAS mark under Policy ¶ 4(a)(i). See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶ 4(a)(i)); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has contended that Respondent does not have any rights or legitimate interests in the <questarsgas.com> 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 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 name. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the name "questar" or "questarsgas," and that Respondent has not been licensed or otherwise authorized to use the QUESTAR GAS mark in any way. The Panel notes that the WHOIS information, which identifies registrant as "Above.com Pty. Ltd / Domain Privacy," does not establish a cognizable connection from Respondent to the domain name. Therefore, the Panel finds that Respondent is not commonly known by the <questarsgas.com> domain name under Policy ¶ 4(c)(ii). See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Complainant contends that the disputed domain name resolves to a parked website that features third-party links to various websites and business entities. Complainant's screenshot evidence appears to support this assertion as it shows link headings such as "Peco Energy Pay Bill," "Online Bill Pay," and "Credit Card Payment," among others. Complainant argues that click-through fees are given to Respondent for each redirected Internet user that passes through Respondent's website. Respondent has not come forward with arguments and evidence to refute these claims. Therefore, the Panel finds that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <questarsgas.com> domain name under Policy ¶ 4(c)(iii). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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)).
Lastly, Complainant contends that Respondent's registration of the <questarsgas.com> domain name, a simple misspelling of Complainant’s mark, is further evidence of Respondent's lack of rights and legitimate interests in the domain name. Complainant contends that the use of a misspelling of a trademark is not a legitimate commercial use. The Panel finds that Respondent has engaged in typosquatting as evidenced by its registration of a typographical error of Complainant's trademark in the domain name and that Respondent does not have rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent registered and used the domain name at issue to achieve financial gain through the collection of click-through or pay-per-click fees from the businesses advertised on its resolving website. Complainant's screenshot evidence supports the claim that a links directory website is being maintained by Respondent at the disputed domain name. Complainant contends that registering a confusingly similar domain name for such a practice is evidence of bad faith registration and use. The Panel finds that Respondent's use of the disputed domain name as a links directory website for financial gain is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)).
The Panel has already found that Respondent has engaged in typosquatting through it registration and use of the <questarsgas.com> domain name. Complainant alleges that Respondent's typosquatting and registration of a misspelling of Complainant's mark is evidence of bad faith registration and use of the disputed domain name. The Panel finds that Respondent's engagement in typosquatting is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).
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 <questarsgas.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 25, 2012
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