ABB Asea Brown Boveri Ltd v. Global Mgr
Claim Number: FA1702001716963
Complainant is ABB Asea Brown Boveri Ltd (“Complainant”), represented by Christopher B. Lay of IpHorgan Ltd, Illinois, USA. Respondent is Global Mgr (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abbsolar.com>, registered with Key-Systems GmbH.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 10, 2017; the Forum received payment on February 10, 2017.
On February 14, 2017, Key-Systems GmbH confirmed by e-mail to the Forum that the <abbsolar.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 February 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 2017 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@abbsolar.com. Also on February 14, 2017, 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 16, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 registered the ABB mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,674,702, registered Feb. 11, 1992). Respondent’s <abbsolar.com> mark is confusingly similar as it merely adds the descriptive term “solar” to the entire ABB mark along with the generic top-level domain “.com” (“gTLD”).
Respondent has no rights or legitimate interests in <abbsolar.com>. Respondent is not commonly known by the ABB mark, nor is Respondent sponsored or legitimately affiliated with Complainant in any way. Complainant has not given Respondent permission to use the mark in a domain name. Respondent also doesn’t use the disputed domain for any bona fide offering of goods or services because the domain name redirects users to Complainant’s website, presumably to phish for users’ personal information. Finally, Complainant twice attempted to contact Respondent to resolve the dispute without arbitration, however Respondent failed to respond to both attempts.
Respondent registered and uses the <abbsolar.com> in bad faith. Respondent uses the domain name to redirect users to Complainant’s website, most likely to phish for personal information from Complainant’s consumers. Additionally, Respondent provided false contact information while registering the disputed domain. Moreover, Respondent has engaged in a pattern of registering domains of well-known trademarks of internationally famous companies. Finally, Respondent must have had actual or constructive knowledge of Complainant’s mark because the disputed domain name redirects users to Complainant’s own <abb.com> domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is ABB Asea Brown Boveri Ltd of Zurich, Switzerland. Complainant is the owner of domestic and international registrations for the mark ABB, which it has continuously used since at least as early as 1992 in connection with its provision of goods and services in various power industries including, electrification, robotics, industrial automation and solar systems.
Respondent is Global Mgr of Sonoma, CA, USA. Respondent’s registrar’s address is listed as St. Ingbert, Germany. The Panel notes that Respondent first registered <abbsolar.com> on or about February 19, 2012.
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(f), 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 (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 is a global technology leader, with four global divisions: electrification products, robotics and motion, industrial automation, and power grids. Complainant operates in over 100 countries and employs around 135,000 people. Complainant registered the ABB mark with the USPTO (e.g., Reg. No. 1,674,702, registered Feb. 11, 1992). Past panels have held that registration of a mark with the USPTO sufficiently establishes a registrant’s rights in a mark. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.). The Panel here finds that Complainant has established rights in the ABB mark for the purposes of Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <abbsolar.com> is confusingly similar as it adds a descriptive term at the end and the gTLD “.com.” Previous panels have found these changes insufficient to distinguish a mark. See Gillette Co. v. RFK Assocs., FA 492867 (Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). Similarly, panels have held that adding the gTLD “.com” does not constitute a sufficient difference. See F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (holding, “Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”). Respondent added the descriptive term “solar” to the end of the ABB mark along with the gTLD “.com”. The Panel here finds that Respondent has not included elements in the domain name that provide sufficient distinction from Complainant’s mark under Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that 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), 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 (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). Complainant has met this burden.
Complainant contends that Respondent has no rights or legitimate interests in <abbsolar.com>. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Global Mgr / GlobalMgr” as the registrant. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the ABB mark. Prior panels have used similar assertions as evidence of lacking rights or legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant here alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the disputed domain name prior to its registration, and Complainant has not given Respondent permission to use the disputed domain name. The Panel here finds that Respondent is not commonly known by <abbsolar.com> under Policy ¶ 4(c)(ii).
Complainant further argues that Respondent’s actions do not constitute a bona fide offering of goods or services because Respondent redirects users to Complainant’s website, likely to phish for personal information. Prior panels have concluded that this conduct demonstrates lack of a bona fide offering of goods or services. See MO Media LLC v. NeXt Age Technologies LTD, FA 220031 (Forum Feb. 18, 2004) (finding the respondent lacked rights and legitimate interests in the disputed domain name when the respondent copied the complainant’s websites in their entirety at the disputed domain names). The Panel here finds that Respondent does not use the disputed domain for a bona fide offering of goods or services.
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
Complainant has proven this element.
Complainant alleges that Respondent engaged in a pattern of registering domains of well-known trademarks of internationally famous companies. A pattern of registering domain names can evince bad faith. See Nabisco Brands Co. v. Patron Group, Inc., D2000-0032 (WIPO Feb. 23, 2000) (holding that registration of numerous domain names is one factor in determining registration and use in bad faith). Complainant claims that Respondent registered multiple domain names that incorporate the identical term “solar” as Respondent uses here, such as <isuzusolar.com>, <acurasolar.com>, and <fiatsolar.com>, among others. The Panel here finds that, based on the multiple similarly confusing registration of domain names, Respondent registered and used the disputed domain name in bad faith.
Complainant contends that Respondent uses the disputed domain name to phish for personal information by redirecting users to a website identical to Complainant. Prior panels have used such conduct to support a conclusion of bad faith. See LifeLock v. Sparta Trading S.A., FA1408001577367 (Forum October 14, 2014) (“Respondent is using the disputed domain name to redirect Internet users to Complainant’s website, which is a violation of its affiliate agreement with Complainant. Therefore, Respondent is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).”). The Panel here finds that Respondent’s actions of redirecting users to Complainant’s own webpage constitutes bad faith registration and use.
Additionally, Complainant contends that Respondent provided false contact information while registering the disputed domain. Registering a confusingly similar domain name using false contact information can evince bad faith registration. See Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name). Complainant states that he attempted to mail two letters to Respondent, yet the letters could not reach Respondent because Respondent used a false address. Additionally, the phone number listed on the WHOIS information uses the country code “+1” and a generic call center number, which does not reach Respondent. Accordingly, the Panel finds that Respondent’s employment of false information when registering the disputed domain constitutes bad faith use and registration.
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
As Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <abbsolar.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: March 30, 2017
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