Tower Automotive Operations USA I, LLC v. April Braddock / Tower lnternatlonal
Claim Number: FA1710001754300
Complainant is Tower Automotive Operations USA I, LLC (“Complainant”), represented by Michael N. Spink of Brinks Gilson & Lione, Michigan, USA. Respondent is April Braddock / Tower lnternatlonal (“Respondent”), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <towerlnternatlonal.com>, registered with Wild West Domains, LLC.
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 October 17, 2017; the Forum received payment on October 17, 2017.
On October 18, 2017, Wild West Domains, LLC confirmed by e-mail to the Forum that the <towerlnternatlonal.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 October 20, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 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@towerlnternatlonal.com. Also on October 20, 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 November 13, 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, Tower Automotive Operations, is the intellectual property holding company of Tower International, Inc. Tower International assigned the rights to its TOWER INTERNATIONAL mark to Complainant in 2016. Complainant is a global manufacturer of automotive structural metal components and related goods and services. Complainant uses the TOWER INTERNATIONAL mark in conjunction with its business practices. Complainant registered the TOWER INTERNATIONAL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,009,410, registered Aug. 9, 2011). Complainant also registered the TOWER INTERNATIONAL mark with government trademark entities in countries throughout North and South America, Asia, and Europe. Respondent’s <towerlnternatlonal.com> is confusingly similar to Complainant’s TOWER INTERNATIONAL mark because it incorporates the mark in its entirety, misspelling the word “International” by replacing the “i” with a lower-case “L” and adding the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in <towerlnternatlonal.com>. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the TOWER INTERNATIONAL mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods and services, or a legitimate non-commercial or fair use of the domain. Respondent uses the <towerlnternatlonal.com> domain to impersonate Complainant via email, ordering products in its name, billing Complainant for amounts in excess of $1 million, and attempting to obtain lines of credit. Moreover, Respondent infiltrated Complainant’s legitimate <towerinternational.com> by creating a redirect to the infringing domain, which is virtually identical to Complainant’s website.
Respondent registered and is using <towerlnternatlonal.com> in bad faith. The disputed domain name was created to impersonate Complainant online and through false email addresses, in furtherance of a criminal scheme. Respondent registered <towerlnternatlonal.com> with actual knowledge of Complainant and its rights to the TOWER INTERNATIONAL mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Tower Automotive Operations USA I, LLC, of Livonia, MI, USA. Complainant is the owner of domestic and international registrations for the mark TOWER INTERNATIONAL, which it has used continuously since at least as early as 2010, in connection with its provision of global manufacturing of engineered automotive structural metal components and assemblies.
Respondent is April Braddock / Tower lnternatlonal, of Loveland, OH, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that Respondent registered <towerlnternatlonal.com> on or about August 21, 2017.
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, Tower Automotive Operations, is the intellectual property holding company of Tower International, Inc. Tower International assigned its TOWER INTERNATIONAL mark to Complainant in 2016. Complainant is a global manufacturer of automotive structural metal components and related goods and services. Complainant uses the TOWER INTERNATIONAL mark in conjunction with its business practices. Complainant registered the TOWER INTERNATIONAL mark with USPTO (e.g., Reg. No. 4,009,410, registered Aug. 9, 2011). Complainant also registered the TOWER INTERNATIONAL mark with government trademark entities in countries throughout North and South America, Asia, and Europe. Trademark registrations with the USPTO and other governmental trademark entities are sufficient to show rights in a mark. See Fossil Group, Inc. v. wuruima wu, FA 1544486 (Forum Mar. 21, 2014) (holding, “Complainant’s registration of the FOSSIL mark with trademark agencies worldwide, including the USPTO and SAIC, establishes Complainant’s rights in the FOSSIL mark pursuant to Policy ¶ 4(a)(i).”). The Panel here finds that Complainant’s registrations with multiple government entities are sufficient to show rights in the TOWER INTERNATIONAL mark.
Complainant maintains that Respondent’s <towerlnternatlonal.com> is confusingly similar to Complainant’s TOWER INTERNATIONAL mark because it incorporates the mark in its entirety, misspelling the word “International” by replacing the “i” with a lower-case “L” and adding the “.com” gTLD. Alterations made to a mark in a disputed domain name that retain a visual similarity to the original mark create a confusing similarity to the mark. See Intelius, Inc. v. Hyn, FA 703175 (Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar). Similarly, “[t]he addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.” Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003). The Panel here finds the changes Respondent made to <towerlnternatlonal.com> are insignificant to differentiate it from Complainant’s TOWER INTERNATIONAL mark.
Respondent raises 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 asserts that Respondent does not have rights or legitimate interests in <towerlnternatlonal.com>. Complainant indicates that Respondent is not commonly known by the disputed domain name. Instead, WHOIS information identifies Respondent as “April Braddock” of “Tower Internatlonal.” Respondent has also failed to contest Complainant’s assertions. A lack of affirmative evidence in the record supports a finding that the respondent is not commonly known by the disputed domain name. Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof. See MB Fin. Bank, N.A. v. mbfinancialmortgage.com, FA 405073 (Forum Mar. 11, 2005) (“[D]espite being listed in the WHOIS information as ‘mbfinancialmortgage.com,’ Respondent is not commonly known by this domain name nor is [it] authorized to register domain names featuring Complainant’s MB FINANCIAL mark.”). The Panel here finds that Respondent is not commonly known by <towerlnternatlonal.com>.
Complainant avers it has not authorized or licensed Respondent to use the TOWER INTERNATIONAL mark in any regard, nor is Respondent affiliated with Complainant. Complainant contends that Respondent has not made a bona fide offering of goods and services, or a legitimate non-commercial or fair use of the domain. To support its contention, Complainant demonstrates that Respondent uses the <towerlnternatlonal.com> domain to impersonate Complainant via email, ordering products in its name, billing Complainant for amounts in excess of $1 million, and attempting to obtain lines of credit. The respondent’s attempt to pass itself off as the complainant through emails does not constitute a bona fide offering of goods or services, thereby evincing a lack of rights or legitimate interests in the disputed domain name. See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017).
Complainant further contends that Respondent infiltrated Complainant’s legitimate <towerinternational.com> by creating a redirect to the infringing domain, which was virtually identical to Complainant’s website. The respondent’s attempt to pass itself of as the complainant was not 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), when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website. Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006). The Panel here finds that Respondent lacks rights or legitimate interests in <towerlnternatlonal.com> under the Policy.
Respondent raises 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 maintains that Respondent registered and is using <towerlnternatlonal.com> in bad faith. Complainant asserts that the disputed domain name was created to impersonate Complainant online and through false email addresses, in furtherance of a criminal scheme. Respondent’s attempt to impersonate an employee of Complainant was evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Smiths Group plc v. Snooks, FA 1372112 (Forum Mar. 18, 2011); Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Moreover, the disputed domain name is registered and used in bad faith where the respondent hosts a website that “duplicate[s c]omplainant’s mark and logo, giving every appearance of being associated or affiliated with [c]omplainant’s business . . . to perpetrate a fraud upon individual[s] who respect[ ] the goodwill surrounding the . . . mark.” Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003). The Panel here finds that Respondent’s use of <towerlnternatlonal.com> as described supports a finding of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
DECISION
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<towerlnternatlonal.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: November 27, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page