Textron Innovations Inc. v. Domain Administrator / Whois Watchdog
Claim Number: FA1308001515676
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick of Continental Enterprises, Indiana, USA. Respondent is Domain Administrator / Whois Watchdog (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bellhelicoptertextron.com>, registered with Rebel.com Corp.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on August 20, 2013; the National Arbitration Forum received payment on August 20, 2013.
On August 21, 2013, REBEL.COM CORP. confirmed by e-mail to the National Arbitration Forum that the <bellhelicoptertextron.com> domain name is registered with REBEL.COM CORP. and that Respondent is the current registrant of the name. REBEL.COM CORP. has verified that Respondent is bound by the REBEL.COM CORP. 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 August 21, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 2013 by which Respondent could file a Response to the Complaint, via e-mail to all en-tities and persons listed on Respondent’s registration as technical, administrat-ive, and billing contacts, and to postmaster@bellhelicoptertextron.com. Also on August 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 September 11, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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 uses the BELL trademark in connection with the marketing of air-craft and airborne vehicles, and the TEXTRON trademark in connection with the marketing of helicopters and airplanes.
Complainant has registered both marks with the United States Patent and Trade-mark Office ("USPTO") (as to BELL: Registry No. 937,437, registered on July 11, 1972) (as to TEXTRON: Registry No. 1,090,806, registered on May 9, 1978).
Respondent registered the <bellhelicoptertextron.com> domain name on Novem-ber 27, 2005.
The <bellhelicoptertextron.com> domain name is confusingly similar to Com-plainant’s BELL and TEXTRON marks.
Respondent has not been commonly known as <bellhelicoptertextron.com>, or any variation thereof.
Complainant has never licensed or otherwise permitted Respondent to use either the BELL or TEXTRON marks in connection with a domain name.
Respondent uses the <bellhelicoptertextron.com> domain name to host a web-site that promotes click-through advertising hyperlinks for its profit.
Respondent has no rights to or legitimate interests in the domain name.
Respondent‘s use of the domain name disrupts Complainant’s business.
Respondent‘s employment of the domain name creates the likelihood that Inter-net users will mistakenly believe that Complainant is the source of the hyperlinks.
Respondent was aware of Complainant and its rights in the BELL and TETRON marks when Respondent registered the domain name.
Respondent both registered and uses the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
i. the domain name registered by Respondent is confusingly similar to trademarks in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the same domain name was registered and is being used by Respondent 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 can-celled 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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 has rights in the BELL and TEXTRON trademarks for purposes of Policy ¶ 4(a)(i) by reason of its registration of the marks with a national trademark authority, the USPTO. This is true without regard to whether Complainant’s rights in its marks arise from their registration in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010), concluding:
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or oper-ates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a re-view of the record that the <bellhelicoptertextron.com> domain name is confus-ingly similar to Complainant’s BELL and TEXTRON trademarks. The domain name contains the entirety of the two marks, with the addition only of the term “helicopter,” which describes an aspect of Complainant’s business, and the generic top-level domain (“gTLD”) “.com.” These alterations of the marks, made in forming the domain name, do not save the domain name from the realm of confusing similarity under the standards of the Policy. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect a domain name for pur-poses of determining whether it is confusingly similar to the mark of another from which it is derived).
On the point of Respondent’s combining two of Complainant’s marks in a single domain name, see also 3M Co. v. Silva, FA 1429349 (Nat. Arb. Forum Mar. 30, 2012) (finding the <littmanncardiologyiii.info> domain name confusingly similar to a UDRP complainant’s LITTMANN and CARDIOLOGY III marks).
And, as to the inclusion in the domain name of the descriptive term “helicopter” and the gTLD “.com,” see Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding, under Policy ¶ 4(a)(i), that the addition to a domain name of the term “batteries,” which described a UDRP complainant’s products, and of the generic top-level domain “.com,” failed to distinguish a respondent’s <duracellbatteries.com> from that complainant’s DURACELL mark).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent 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 has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been known by the <bellhelicoptertextron.com> domain name, and that Complainant has never authorized Respondent to use either the BELL or the TEXTRON trademark in a domain name. Moreover, the pertinent WHOIS information identifies the domain name registrant only as “Domain Ad-ministrator / Whois Watchdog,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), the panel there determining that a finding of rights or interests in a respondent under Policy ¶ 4(c)(ii) would be inap-propriate when there was nothing in the record to suggest that that respondent was commonly known by the domain name at issue.
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <bellhelicoptertextron.com> domain name to host a website that promotes click-through advertising hyperlinks from the operation of which Respondent profits. This employment of the domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial use. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (finding that the operation by a respondent of a pay-per-click website resolving from a domain name that was confusingly similar to the mark of another 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)).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the contested <bellhelicoptertextron.com> domain name, as alleged in the Complaint, disrupts Complainant’s business. This stands as proof of bad faith in the registration and use of the domain name under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use as described in Policy ¶ 4(b)(iii) by employing dis-puted domain names to operate a commercial search engine with links to web-sites offering the products of a UDRP complainant’s commercial competitors).
We are also convinced by the evidence that Respondent’s use of a domain name which is confusingly similar to Complainant’s BELL and TEXTRON trademarks to profit from the likelihood that Internet users will be confused as to the possibility of Complainant’s association with the domain name demonstrates bad faith in the registration and use of the domain name as described in Policy ¶ 4(b)(iv). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007), finding, under Policy ¶ 4(b)(iv), that a respondent’s use of a domain name that was con-fusingly similar to the mark of another to profit from the exploitation of commer-cial advertisements indicated bad faith registration and use of the domain name.
Finally, under this head of the Policy, the evidence shows that Respondent knew of Complainant and its rights in the BELL and TEXTRON trademarks when Re-spondent registered the <bellhelicoptertextron.com> domain name. This further shows bad faith registration of the domain name. See, for example, Minicards Vennootschap Onder Firma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (finding that a respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) where that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Accordingly, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <bellhelicoptertextron.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 24, 2013
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