Direct Energy Marketing Limited v. kristine fisher
Claim Number: FA1712001762709
Complainant is Direct Energy Marketing Limited (“Complainant”), represented by Meredith R. Phillips of IPWatch Corporation, Alabama, USA. Respondent is kristine fisher (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <directenergyinc.com>(the Domain Name), registered with Google Inc.
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.
Dawn Osborne of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 13, 2017; the Forum received payment on December 13, 2017.
On December 13, 2017, Google Inc. confirmed by e-mail to the Forum that the <directenergyinc.com> domain name is registered with Google Inc. and that Respondent is the current registrant of the name. Google Inc. has verified that Respondent is bound by the Google Inc. 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 December 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2018 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@directenergyinc.com. Also on December 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 January 8, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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’s contentions can be summarised as follows:
Complainant owns the trade mark DIRECT ENERGY registered, inter alia, in the USA and Canada, first registered in Canada since at least 2001.
The Domain Name is confusingly similar to Complainant’s DIRECT ENERGY mark.
Respondent has no rights or legitimate interests. It is not commonly known as ‘Direct Energy’ and has no trade mark rights in relation to the same. The Domain Name has not been used and so it has not been used in connection with a bona fide offering of goods and/or services or a legitimate non commercial or fair use.
Respondent is cybersquatting the Domain Name and has registered and used the Domain Name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the trade mark DIRECT ENERGY registered, inter alia, in the USA and Canada, first registered in Canada since at least 2001.
The Domain Name has not been used.
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 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.”).
The Domain Name consists of Complainant’s DIRECT ENERGY trade mark (registered in, inter alia, Canada and the USA for energy services with first registration in Canada recorded as 2001), the generic term ‘inc’ and the gTLD .com.
The addition of the generic term ‘inc’ does not serve to distinguish the Domain Name from Complainant’s DIRECT ENERGY mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4 (a) (i).)
The gTLD .com is a necessary component of a domain name. It forms a functional role in the Domain Name and does not serve to distinguish the Domain Name from the DIRECT ENERGY mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which Complainant has rights. It is, therefore, not necessary to compare the Domain Name to other marks owned by Complainant.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
There has been no use of the mark. See Thermo Electron Corp v Xu, FA 71851 (Forum July 12, 2006)(Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4 ( c ) (i) or a legitimate non commercial or fair use under Policy 4 ( c )(iii)).
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing Complainant’s well known mark. Complainant alleges that Respondent must have been aware of Complainant and its business at the time of registration and Respondent has not spoken up to say this is not the case.
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
As such, the Panel holds that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <directenergyinc.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne , Panelist
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