Textron Innovations Inc. v. mike hanz / mike hanz inc
Claim Number: FA1502001606695
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick of Continental Enterprises, Indiana, USA. Respondent is mike hanz / mike hanz inc (“Respondent”), Central, Ghana.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <text-ron.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 25, 2015; the Forum received payment on February 25, 2015.
On February 27, 2015, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <text-ron.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 March 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 23, 2015 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@text-ron.com. Also on March 2, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On March 31, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 asserts trademark rights in TEXTRON and alleges that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is a well-known industrial conglomerate which does business under the registered trademark TEXTRON;
2. The trademark is registered with the United States Patent and Trademark Office ("USPTO") under Reg. No. 1,090,704, registered May 9, 1978;
3. The disputed domain name was registered on September 22, 2014;
4. The domain name resolves is not in use.
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – an investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Complainant clearly has trademark rights as a result of registration of the trademark with the USPTO but, for reasons which follow, the Panel need not decide whether or not the domain name is confusingly similar to the trademark within the meaning of paragraph 4(a)(i). That decision is rendered unnecessary because the Panel has found that the domain name has not been used in bad faith. Since Complainant has failed to satisfy paragraph 4(a)(iii) of the Policy, the Panel is no longer required to undertake a full assessment of the remaining elements.[1]
Paragraph 4(c) of the Policy sets out the non-exhaustive circumstances which might demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy.
Panel’s finding on bad faith makes it unnecessary to consider this aspect of the Policy further. Nonetheless, Panel observes that, on the evidence, it is questionable whether Complainant made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.[2]
Registration and Use in Bad Faith
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
Complainant asserts[3] that “[I]t is clear that Respondent … likely intends to divert Internet traffic to his web site at Text-ron.com in order to generate click through ad revenue.”
Complainant asserts that “[T]he facts of record support findings that Respondent both registered and is using the domain name at issue in bad faith under Policy ¶ 4(b)(iii) and ¶ 4b(iv) (sic).”
After reciting those subparagraphs of the Policy and referring to the long use of the trademark, the Complainant states:
“In summary, it cannot be disputed that Complainant has long standing and well recognized rights and goodwill in its TEXTRON marks and that the Text-ron.com domain name at issue is confusingly similar to the TEXTRON marks. Respondent has no legitimate rights in the Text-ron.com domain name. Respondent has registered and is using the Text-ron.com domain name to capitalize on the goodwill that Complainant has developed in its TEXTRON marks to drive Internet traffic inappropriately to its web site for commercial gain.”
Exhibit 5 to the Complaint is described as the “Text-ron.com Homepage”. It is not a “homepage” as anyone would call it. What is shown is the page “resolving” from http://text-ron.com. It reads: “This webpage is not available”. Further, that “[T]he server at text-ron can’t be found, because the DNS lookup failed.” It also carries the message, “Did you mean http://textron.com?”
In other words, aside from this message generated by Google, there is no use of the disputed domain name. Accordingly, there are no “facts of record” as Complainant calls them, to support the claim that Respondent is using the domain name in bad faith. It follows that there is no evidence that Respondent “is using the domain name to drive Internet traffic inappropriately to its web site for commercial gain.” Further, it follows that the claim that Respondent “intends to divert Internet traffic to his web site at Text-ron.com in order to generate click through ad revenue” is speculation, not fact.
Panel observes that even in the absence of a reasoned response, there is a plausible alternative construction that can be given to the domain name, which can be read as “text Ron” in the same way as, for example, “text John”.[4] That possibility then leaves open the question as to whether Respondent targeted Complainant and its trademark. Had the Complaint shown that there was questionable use of the disputed domain name then Panel would likely have seen the domain name differently and might have been more willing to draw an adverse inference about Respondent’s intentions at the time of registration.
On the available evidence, Panel cannot find support for Complainant’s assertion that Respondent is caught by either paragraph 4(b)(iii) or 4(b)(iv) of the Policy. There is no evidence whatsoever that Respondent registered the domain name primarily for the purpose of disrupting Complainant’s business, leaving to one side the implausibility that the parties are “competitors” within the meaning of paragraph 4(b)(iii). Further, in terms of paragraph 4(b)(iv) of the Policy, there is no meaningful use of the domain name, no relevant website location or other on-line location connected with Respondent and no suggestion of commercial gain aside from Complainant’s apprehension of future use of the domain name in connection with pay-per-click advertising.
On balance, Panel would hesitate before finding evidence of registration in bad faith, but that issue can remain undecided since there is no evidence at all of bad faith use[5] and so the Complaint necessarily fails. Nonetheless, this decision is made “without prejudice” to Complainant’s right to re-institute administrative proceedings in respect of the disputed domain name were the name to be used in violation of the Policy.[6]
Having failed to establish one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <text-ron.com> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: April 6, 2015
[1] See, for example, Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002); Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006).
[2] See Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
[3] In that part of the Complaint concerned with legitimacy and Policy, para 4(a)(ii), but having bearing on bad faith.
[4] In that respect the Panel considers that the determination of whether or not the domain name and trademark are confusingly similar or not for the purposes of paragraph 4(a)(i) of the Policy does not conclusively bear on the findings to be made with respect to paragraphs 4(a)(ii) and (iii): see
Precious Puppies of Florida, Inc. v. kc, FA 1028247 (Nat. Arb. Forum Aug. 10, 2007) (examining Respondent’s generic terms arguments only under Policy ¶ 4(a)(ii) and Policy ¶ 4(a)(iii) and not under Policy ¶ 4(a)(i)); see also Vitello v. Castello, FA 159460 (Nat. Arb. Forum July 1, 2003) (finding that the respondent’s disputed domain name was identical to complainant’s mark under Policy ¶ 4(a)(i), but later determining the issue of whether the disputed domain name was comprised of generic terms under Policy ¶¶ 4(a)(ii) and 4(a)(iii)).
[5] Nor, given at least a plausible reason for registration of the domain name, for application of the principles first set out in Telstra Corporation Limited v. Nuclear Marshmallows (WIPO Case D2000-000318).
[6] Such right not to include a refiled complaint based merely on better evidence already available at the time of this Complaint.
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