national arbitration forum

 

DECISION

 

Hunt Construction Group, Inc. v. Hunt Construction

Claim Number: FA1306001506468

PARTIES

Complainant is Hunt Construction Group, Inc. (“Complainant”), represented by Jill Sarnoff  Riola of Carlton Fields, P.A., Florida, USA.  Respondent is Hunt Construction (“Respondent”), Arizona, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <huntconstructiongroups.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on June 24, 2013; the National Arbitration Forum received payment on June 26, 2013.

 

On Jun 26, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <huntconstructiongroups.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 June 27, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 17, 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@huntconstructiongroups.com.  Also on June 27, 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 23, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

·        Complainant is a prestigious construction contractor that has been involved in the construction of various projects in major American cities, such as AT&T Park in San Francisco, the Amyway Center in Orlando, the Barclays Center in Brooklyn, the Time Warner Cable Arena in Charlotte, and airline terminals in Atlanta, Philadelphia, and Phoenix.

·        Complainant has conducted business under the HUNT CONSTRUCTION GROUP mark, and has obtained United States Patent and Trademark Office ("USPTO") trademark registrations for the mark. See Reg. No. 2,570,155 registered on Feb. 19, 2002.

·        Respondent’s <huntconstructiongroups.com> domain name merely adds the letter “s” to Complainant’s mark.

·        Respondent is in no way connected with Complainant, and is listed as “Domains By Proxy, LLC.”  Complainant has never licensed, permitted, or allowed Respondent to use the HUNT CONSTRUCTION GROUP mark in any way.

·        Respondent has failed to put the <huntconstructiongroups.com> domain name to any active use.

·        Respondent uses an e-mail account through the <huntconstructiongroups.com> domain name to pose as Complainant and make random offers of employment to third parties.

·        Respondent is typosquatting this domain name to deceive Internet users.

·        Respondent is seeking to disrupt Complainant’s business by perpetuating a scam in which Respondent offers various individuals jobs with Complainant.

·        Respondent has actual knowledge of Complainant’s rights in the marks, as noted through Respondent’s elaborate scheme in deceiving innocent third-parties into believing Respondent has the authority to hire them into Complainant’s company.

·        Respondent’s typosquatting conduct evinces bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the HUNT CONSTRUCTION GROUP mark.  Respondent’s domain name is confusingly similar to Complainant’s HUNT CONSTRUCTION GROUP mark.  Complainant has established that Respondent lacks rights or legitimate interests in the use of the <huntconstructiongroups.com> domain name, and that Respondent registered and uses the domain name in bad faith.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

Complainant claims that it has conducted its construction business under the HUNT CONSTRUCTION GROUP mark for years, and has obtained USPTO trademark registrations for the mark. See Reg. No. 2,570,155 registered on Feb. 19, 2002. USPTO registration satisfies Complainant’s Policy ¶ 4(a)(i) burden to show its rights, as Respondent also resides in the United States. 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).”).

 

Complainant next argues that Respondent’s <huntconstructiongroups.com> domain name merely adds the letter “s” to Complainant’s mark. Respondent removed all spacing from the mark, added an “s” to the term “group,” and affixed the generic top-level domain (“gTLD”) “.com” in forming this domain name. None of these changes sufficiently distinguishes the domain name from Complainant’s mark.  See 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.”); .R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)). The Panel therefore finds that the <huntconstructiongroups.com> domain name is confusingly similar to the HUNT CONSTRUCTION GROUP mark under Policy ¶ 4(a)(i).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.  In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.

                    

Complainant contends that Respondent is in no way connected with Complainant, and is listed as “Domains By Proxy, LLC.” Complainant avows that it has never licensed, permitted, or allowed Respondent to use the HUNT CONSTRUCTION GROUP mark in any way. However, the WHOIS information lists “Hunt Construction” as the registrant. In light of Complainant’s express denial of authorization, and given the absence of any corroborating information, Respondent cannot be found to be commonly known by the <huntconstructiongroups.com> domain name based solely upon information in the WHOIS database. See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).

 

Complainant also argues that Respondent has failed to put the <huntconstructiongroups.com> domain name to any active use. An error message appears when the <huntconstructiongroups.com> domain name is entered into the web browser. There can be neither a Policy ¶ 4(c)(i) bona fide offering, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use behind the holding of this domain name without an active website. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website.  The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy  ¶ 4(c)(iii).”).

 

Complainant next argues that Respondent uses an e-mail account through the <huntconstructiongroups.com> domain name to pose as Complainant and make specific offers of employment to third parties. The Panel agrees that Respondent’s use of the domain name to convince third-parties that they will get a job with Complainant, when in fact Respondent is a deceiver who is passing off as Complainant, illustrates that Respondent at no point held a Policy ¶ 4(a)(ii) right or legitimate interest in the domain name. See, e.g., Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).

 

Complainant believes that Respondent is typosquatting this domain name to deceive Internet users. Respondent’s registration of a domain name that simply affixes the letter “s” to Complainant’s mark is evidence that Respondent is nothing more than a typosquatter who does not have any Policy ¶ 4(a)(ii) rights or legitimate interests in the <huntconstructiongroups.com> domain name. 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).”).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent is seeking to disrupt Complainant’s business by perpetuating a scam in which Respondent offers jobs to work with Complainant. Respondent carefully presents itself as Complainant by tricking individuals into believing that Respondent has the ability to offer them a job with Complainant. The Panel agrees that Respondent’s registration and use of this domain name to interrupt Complainant’s business and create ill will through the propagation of fraudulent job offers demonstrates Policy ¶ 4(b)(iii) bad faith. See Toyota Jidosha Kabushiki Kaisha v. S&S Enters. Ltd., D2000-0802 (WIPO Sept. 9, 2000) (“Registration of a domain name [by the respondent that incorporates another’s trademark] goes further than merely correctly using in an advertisement the trade mark of another in connection with that other’s goods or services.”); see also Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”).

 

Complainant argues that Respondent’s typosquatting conduct illustrates bad faith. Respondent’s registration of the <huntconstructiongroups.com> domain name evidences bad faith use and registration, given that the name merely places an “s” into what is otherwise Complainant’s own <huntconstructiongroup.com> domain name and HUNT CONSTRUCTION GROUP mark. See Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”).

 

Complainant finally argues that Respondent has actual knowledge of Complainant’s rights in the marks, as noted through Respondent’s elaborate scheme of deceiving innocent third-parties into believing Respondent has the authority to hire them into Complainant’s company. The Panel agrees that the record of Respondent’s actions provides a clear case of Policy ¶ 4(a)(iii) bad faith through use and registration of the domain name with full actual knowledge of Complainant’s rights in its mark. See Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum Dec. 16, 2002) (finding bad faith where the method by which the respondent acquired the disputed domain names indicated that the respondent was well aware that the domain names incorporated marks in which the complainant had rights).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <huntconstructiongroups.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Bruce E. Meyerson, Panelist

Dated:  July 29, 2013

 

 

 

 

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