Green Mountain Energy Company v. Above.com Domain Privacy
Claim Number: FA1306001505646
Complainant is Green Mountain Energy Company (“Complainant”), represented by Tyson D. Smith of Pirkey Barber PLLC, Texas, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <greeenmountainenergy.com>, registered with Above.com Pty Ltd.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 19, 2013; the National Arbitration Forum received payment on June 19, 2013.
On June 19, 2013, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <greeenmountainenergy.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 June 21, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 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@greeenmountainenergy.com. Also on June 21, 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 July 17, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant, Green Mountain Energy Company, is the nation’s longest-serving renewable energy retailer.
Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the GREEN MOUNTAIN ENERGY mark (e.g., Reg. No. 2,646,099, registered November 5, 2002).
Complainant’s domain name <greenmountainenergy.com> redirects to its www.greenmountain.com website, and can be used by Internet users directly navigating to Green Mountain Energy’s website.
Respondent’s domain name is an obvious reference to Complainant, and is merely a deliberate misspelling of the mark GREEN MOUNTAIN ENERGY. The presence of a generic top-level domain (“gTLD”) (“.com”) is irrelevant to a Policy ¶ 4(a)(i) analysis.
Respondent has no rights or legitimate interests in the domain name <greeenmountainenergy.com>. Respondent is not commonly known by the domain name <greeenmountainenergy.com>. Respondent uses the domain name in connection with a monetized parking page displaying various links that consumers are likely to associate with Complainant and/or its products and services.
Respondent registered and is using the domain name <greeenmountainenergy.com> in bad faith. Respondent has engaged in a pattern of bad faith registration and use of others’ trademarks in domain names. Respondent presumably is paid a fee or commission when Internet users visit the website at <greeenmountainenergy.com>, click on the various links likely to be associated with Complainant, and are diverted to third-party websites.
Respondent’s typosquatting is evidence of bad faith registration and use of <greeenmountainenergy.com>.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO registered trademark for GREEN MOUNTAIN ENERGY.
Respondent is not affiliated with Complainant and had not been authorized to use the GREEN MOUNTAIN ENERGY mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in GREEN MOUNTAIN ENERGY.
Respondent has engaged in a pattern of bad faith registration and use of others’ trademarks in domain names.
Respondent presumably is paid a click through fee when Internet users visit <greeenmountainenergy.com> and click on a link. The links on the Respondent’s website are nominally associated with Complainant. On clicking one of the links the user is diverted to a third-party website which may compete with Complainant’s goods or services.
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the GREEN MOUNTAIN ENERGY mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). Complainant need not have registered its mark in the jurisdiction where Respondent operates to demonstrate such rights. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i)”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The <greeenmountainenergy.com> domain name differs from Complainant’s GREEN MOUNTAIN ENERGY mark in that the spaces are removed from in‑between the mark’s terms, an “e” is inserted into the term “GREEN” and the resulting string is suffixed with the top level domain name “.com.” The resulting differences between the at-issue domain name and Complainant’s mark do not distinguish the two for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <greeenmountainenergy.com> domain name is confusingly similar to Complainant’s GREEN MOUNTAIN ENERGY mark under Policy ¶4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and since as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies “Above.com Domain Privacy” as the at-issue domain name’s registrant. Moreover, the record before the Panel contains no evidence that suggests Respondent is otherwise commonly known by the domain name. The Panel thus concludes that Respondent is not commonly known by the at-issue domain name for the purposes of 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); 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).
Furthermore, Respondent uses the domain name in connection with a monetized parking page displaying various links that consumers are likely to associate with Complainant and its products and services. Respondent’s <greeenmountainenergy.com> domain name addresses a website featuring competing hyperlinks to “Renewable Energy,” “Save on Energy,” “Energy Conservation,” and others. Therefore, the Panel concludes that Respondent’s use of the <greeenmountainenergy.com> domain name constitutes neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at‑issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances, as well as other circumstance, are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent has engaged in a pattern of bad faith registration and use of others’ trademarks in domain names. This pattern is evidenced by at least 124 NAF cases and 124 WIPO UDRP cases brought against Respondent. For example seeVanguard Trademark Holdings USA LLC v. Above.com Domain Privacy, FA1333300 (Nat. Arb. Forum Aug. 4, 2010); see also W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010). Respondent’s litany of UDRP decisions suggests that Respondent registered and is using the <greeenmountainenergy.com> domain name in bad faith pursuant to Policy ¶ 4(b)(ii). See Azar Int’l Inc. v. Texas Int’l Prop. Assocs., FA 1122600 (Nat. Arb. Forum Feb. 18, 2008) (determining that the respondent’s forty-one prior UDRP rulings were evidence of bad faith registration under Policy ¶ 4(b)(ii)).
Furthermore, Respondent presumably is paid a fee or commission when Internet users visit the website at <greeenmountainenergy.com>, click on the various links, and are diverted to third-party websites. As mentioned above, Respondent’s <greeenmountainenergy.com> domain name addresses a website featuring hyperlinks titled “Renewable Energy,” “Save on Energy,” “Energy Conservation,” and others. These links appear to address websites that directly compete with Complainant. Respondent’s use of its confusingly similar domain name to address the <greeenmountainenergy.com>website creates a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and the links displayed thereon. Respondent’s use of the domain name in this manner demonstrates bad faith pursuant to 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).
Finally, Respondent is attempting to capitalize on the typographical errors of Internet users who are seeking Complainant’s authorized website. Respondent adds an additional letter “e” to Complainant’s GREEN MOUNTAIN ENERGY mark in forming the at-issue second level domain name. Such is a common typographical error and users looking for Complainant who inadvertently add an extra “e” when attempting to enter Complainant’s <greenmountainenergy.com> website instead address Respondent’s <greeenmountainenergy.com> website. Because of the subtlety of the difference between the at-issue domain name and Complainant’s mark at least some mistyping visitors will erroneously believe he or she is on Complainant’s official website when in fact he or she was delivered to Respondent’s mock website. Using an intentionally misspelled trademark in a domain name to unfairly exploit the typographical errors of Internet users that are seeking the trademark holder’s authorized website constitutes typosquatting. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith under Policy ¶ 4(a)(iii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003)(finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to 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 <greeenmountainenergy.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 18, 2013
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