Haas Automation, Inc. v. Alastair Hanson
Claim Number: FA1503001609231
Complainant is Haas Automation, Inc. (“Complainant”), represented by Farah P. Bhatti of Baker & Hostetler LLP, California, USA. Respondent is Alastair Hanson (“Respondent”), West Yorkshire, United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <haascncsolutions.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 12, 2015; the Forum received payment on March 13, 2015.
On March 13, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <haascncsolutions.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 March 16, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 6, 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@haascncsolutions.com. Also on March 16, 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 April 15, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 maintains that it uses the HAAS mark in connection with computer numerically controlled (or CNC) machines and machine tools. Complainant has registered the HAAS mark with the likes of the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,573,776, registered May 28, 2002), which establishes its rights in the mark. Respondent’s <haascncsolutions.com> domain name is confusingly similar to the HAAS mark because it incorporates the descriptive terms “cnc” and “solutions” along with the generic top-level domain (“gTLD”) “.com” along with the Complainant’s registered trademark.
Complainant contends that Respondent has no rights or legitimate interests in the <haascncsolutions.com> domain name. Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii), nor has Complainant given Respondent its consent to use the HAAS mark in domain name registrations. Further, Respondent is not using the domain name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Instead, Respondent has included various click-through advertisements on the <haascncsolutions.com> domain’s resolving page from which Respondent presumably profits.
Respondent is using the disputed domain name in bad faith. Respondent’s use of the disputed domain name disrupts Complainant’s business. Respondent’s use of click-through links is evidence of Policy ¶ 4(b)(iv) attraction for commercial gain. Finally, Respondent had actual and/or constructive knowledge of Complainant’s mark and its rights when registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Respondent registered the disputed domain name on June 2, 2004.
As the Respondent has failed to file a Response in this matter, the Panel will accept as true those assertions made by Complainant that are not obviously unreasonable. As such, the Panel finds that Respondent has registered the disputed domain name and that this disputed domain name is confusingly similar to the Complainant’s subsisting registered trademark, the Respondent has no rights or legitimate interests in or to the domain name, and the Respondent has registered and is using the disputed domain name 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 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.”).
Complainant uses the HAAS trademark in connection with computer numerically controlled (or CNC) machines and machine tools. Complainant has registered the HAAS mark with the USPTO (e.g., Reg. No. 2,573,776, registered May 28, 2002), which establishes its rights in the mark. When a complainant has registered a mark with the USPTO, rights in such a mark may be recognized pursuant to an analysis of Policy ¶ 4(a)(i), even where complainant and respondent are located in different countries. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <haascncsolutions.com> domain name is confusingly similar to the HAAS mark because it incorporates the descriptive terms “cnc” and “solutions” along with the generic top-level domain (“gTLD”) “.com” with the registered trademark. Because such terms can be deemed to describe Complainant’s business purposes, the <haascncsolutions.com> domain name is confusingly similar under Policy ¶ 4(a)(i). See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that “Respondent does not by adding the common descriptive or generic terms ‘corp’, ‘corporation’ and ‘2000’ following ‘PGE’, create new or different marks in which it has rights or legitimate interests, nor does it alter the underlying [PG&E] mark held by Complainant”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
As such, the disputed domain name is confusingly similar to the Complainant’s registered trademark.
Respondent has no rights or legitimate interests in the <haascncsolutions.com> domain name. Complainant urges that Respondent is not commonly known by the disputed domain names or any variant of HAAS, nor has Complainant authorized Respondent to register the domain name or any variant of the HAAS mark. The Panel notes that the WHOIS information merely lists “Alastair Hanson” as registrant of record. See Compl., at Attached Ex. 4. As Respondent has failed to add any evidence for the Panel’s consideration, there is no basis in the available evidence to find that the Respondent is commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
The Complainant further contends that the Respondent is not utilizing the <haascncsolutions.com> domain name to make 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). Complainant’s Exhibit 5, which purports to direct Internet users’ attention to such hyperlinks as “OZO Custom CNC Machines”, “CNC Machines”, and “CNC Training”, appears to be directly competing with Complainant’s business purposes. Additionally, the Panel presumes that Respondent is commercially benefitting from the inclusion of such click-through links. In light of the available evidence, the Panel agrees that Respondent’s use of click-through links which direct Internet users to competitors of Complainant, from which Respondent presumably profits. This constitutes neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Therefore, the Respondent has no rights or legitimate interests in or to the disputed domain name.
Complainant argues that Respondent’s use of the disputed domain name disrupts Complainant’s business. In so arguing, Complainant notes that Internet users seeking Complainant’s website may be redirected to Complainant’s competitors. Complainant believes that such a use constitutes bad faith under Policy ¶ 4(b)(iii). Past panels have agreed with this argument. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”)
Accordingly, as there is no evidence in the record to contradict these conclusions, the Panel finds that Respondent’s use of the disputed domain name disrupts Complainant’s business and is evidence of bad faith under Policy ¶ 4(b)(iii).
Complainant also argues that Respondent’s use of the disputed domain name comports with Policy ¶ 4(b)(iv) in that it amounts to use of the domain name as attraction for commercial gain. In arguing this point, Complainant maintains that, pursuant to Exhibit 5, Respondent’s inclusion of hyperlinks such as “OZO Custom CNC Machines”, “CNC Machines”, and “CNC Training” presumably net Respondent pay-per-click fees when Internet users click on such links. Such links evince a competitive connotation with Complainant’s business purposes.
The use of the <haascncsolutions.com> domain name constitutes bad faith under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Complainant asserts that, due to its extensive list of trademark registrations, Respondent must have had constructive knowledge of Complainant's rights in the HAAS mark when Respondent registered the disputed domain name. Complainant further argues that the advertisements for CNC machines and training, which may be seen as the same types of products and services offered by Complainant, indicate that Respondent had actual knowledge of Complainant and its rights. Even though the Panel disregards Complainant's arguments concerning constructive knowledge as panels have held that constructive knowledge alone is not enough evidence to support a finding of bad faith, (See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Nat. Arb. Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy.")), the Panel agrees with Complainant regarding Respondent's actual knowledge. It appears to be a safe presumption that, given the nature of Respondent’s use and the totality of the circumstances, the Respondent registered the <haascncsolutions.com> domain name in bad faith according to Policy ¶ 4(a)(iii). See Immigration Equality v. Brent, FA 1103571 (Nat. Arb. Forum Jan. 11, 2008) ("That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under Policy ¶ 4(a)(iii).").
As there is no evidence in the record that contradicts this conclusion, the Panel finds that the Respondent registered and used the disputed domain name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <haascncsolutions.com> domain name be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: April 16, 2015
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