Ameren Corporation v. Leo Fulton
Claim Number: FA1304001495149
Complainant is Ameren Corporation (“Complainant”), represented by Paul Maddock of Senniger Powers LLP, Missouri, USA. Respondent is Leo Fulton (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amerentransmission.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2013; the National Arbitration Forum received payment on April 16, 2013.
On April 18, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <amerentransmission.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 April 22, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 2013 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@amerentransmission.com. Also on April 22, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 May 21, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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.
i. Complainant has not licensed or otherwise permitted Respondent to use its AMEREN or AMEREN TRANSMISSION marks.
ii. Respondent’s use of the <amerentransmission.com> domain name is an attempt to passively hold the name and hold it hostage from Complainant.
i. Respondent is deliberately using a confusingly similar domain name to Complainant’s marks to hold the domain name hostage from Complainant and potentially seek a fee for its transfer to Complainant or Complainant’s competitors.
ii. Respondent’s use of the <amerentransmission.com> domain name is an attempt to passively hold the name and hold it hostage from Complainant.
1. Respondent’s <amerentransmission.com> domain name is confusingly similar to Complainant’s AMEREN mark.
2. Respondent does not have any rights or legitimate interests in the < amerentransmission.com> domain name.
3. Respondent registered or used the < amerentransmission.com > domain name in bad faith.
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."
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.
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.”).
Complainant, Ameren Corporation, argues that it is a well-known major power company headquartered in St. Louis, Missouri. Complainant contends that it is the owner of trademark registrations with the USPTO for the AMEREN mark (e.g., Reg. No. 2,162,874, registered June 2, 1998) and for the AMEREN TRANSMISSION mark (Reg. No. 4,238,167, registered November 6, 2012). See Complainant’s Exhibits 3 and 4. The Panel notes that Respondent appears to reside within the United States. Therefore, the Panel finds that Complainant’s registration of the AMEREN and AMEREN TRANSMISSION marks with the USPTO sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Complainant asserts that Respondent’s <amerentransmission.com> domain name is virtually identical to and confusingly similar with Complainant’s AMEREN mark because it fully incorporates Complainant’s AMEREN marks. The Panel notes that Respondent adds the generic top-level domain (“gTLD”) “.com” to the mark in the domain name. The Panel determines that Respondent’s addition of a gTLD is inconsequential to a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel also notes that Respondent adds the descriptive term “transmission” to Complainant’s mark in the disputed domain name, and the Panel finds that this change fails to differentiate the domain name from the mark. See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business). Therefore, the Panel finds that Respondent’s <amerentransmission.com> domain name is confusingly similar to Complainant’s AMEREN mark pursuant to Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that it has not licensed or otherwise permitted Respondent to use its AMEREN mark. The Panel notes that the WHOIS information identifies “Leo Fulton” as the registrant of the disputed domain name. See Complainant’s Amended Exhibit 1. The Panel notes that Respondent does not provide additional evidence showing that it is known by the domain name. Consequently, the Panel holds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant claims that Respondent’s use of the <amerentransmission.com> domain name is an attempt to passively hold the name. The Panel notes that Respondent’s disputed domain name displays a page with little content. See Complainant’s Exhibit 9. The Panel finds that Respondent’s unrelated use of domain name is not a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant argues that Respondent is deliberately using a confusingly similar domain name to Complainant’s marks to hold the domain name hostage from Complainant and potentially seek a fee for its transfer to Complainant or Complainant’s competitors. The Panel notes that Respondent’s disputed domain name links to a GoDaddy.com website stating “Want to buy this domain?” See Complainant’s Exhibit 9. The Panel determines that Respondent’s general offer to sell the domain name to the public demonstrates bad faith use and registration under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Complainant contends that Respondent’s use of the <amerentransmission.com> domain name is an attempt to passively hold the name and hold it hostage from Complainant. The Panel finds that Respondent’s use of the disputed domain name prevents Complainant’s from registering it, showing bad faith use and registration under Policy ¶ 4(a)(iii). See Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005 (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another Policy proceeding against the respondent to find that “this is part of a pattern of such registrations”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amerentransmission.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: June 3, 2013
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