Solar Turbines Incorporated v. trams / trams ltd
Claim Number: FA1906001847632
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie H. Bald of Kelly IP, LLP, District of Columbia, United States. Respondent is trams / trams ltd (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solarsturbine.com> (‘the Domain Name’), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 12, 2019; the Forum received payment on June 12, 2019.
On Jun 14, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <solarsturbine.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. 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 June 14, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 2019 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 email@example.com. Also on June 14, 2019, 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 July 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
The Complainant’s contentions can be summarized as follows;
The Complainant is the owner of the marks SOLAR TURBINES and SOLAR marks. SOLAR was registered in the USA and Canada for gas turbines and related goods and services since 1975 and in Australia since 1970. SOLAR TURBINES is registered, inter alia, in Mexico and Algeria since 2012. The Complainant also owns the common law rights to the marks in many countries around the world.
The Domain Name registered in 2018 is confusingly similar to the Complainant’s marks merely moving the s from the end to the middle of the domain name for SOLAR TURBINES and adding the generic word turbines to the SOLAR mark. It is a typosquatted domain.
The Domain Name is not being used.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant. Typosquatting is an indication of a lack of rights or legitimate interests. Passive holding is not a bona fide offering of goods or services or a non-commercial legitimate or fair use.
The Respondent has registered a number of domain names including the trademarks of third parties including PEPSI CO and this is indicative of a bad faith pattern of registering domain names containing the trademarks of unrelated third parties. Diverting users using the Domain Name is bad faith disruption of the Complainant’s business. Typosquatting is indicative of bad faith per se and shows actual knowledge of the Complainant and its business.
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the marks SOLAR TURBINES and SOLAR marks. SOLAR was registered in the USA and Canada for gas turbines and related goods and services since 1975 and in Australia since 1970. SOLAR TURBINES is registered, inter alia, in Mexico and Algeria since 2012.
The Domain Name registered in 2018 has not been used. The Respondent has registered a number of domain names containing the trademarks of unrelated third parties.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
The Domain Name consists of a sign confusingly similar to the Complainant’s SOLAR TURBINES mark (registered, inter alia in Mexico for gas turbine related goods and services since 2012) with the letter ‘s’ moved from the end to the middle and the gTLD.com.
Misspelling a mark does not prevent confusing similarity between the domain name and the mark. See Hallelujah Acres Inc. v. Manila Indus., Inc., FA 805029 (Forum Nov. 15, 2006).
Adding the gTLD ".com" does not serve to distinguish the Domain Name from the SOLAR TURBINES mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the 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 of the Policy to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the 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 the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
There has been no use of the mark. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum April 20, 2005) (Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i)).
Typosquatting, the practice of registering a domain name containing common typing errors in a complainant’s mark, can indicate a lack of rights and legitimate interests in a domain name under Policy ¶ 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to the Complainant’s mark in what appears on the face of it to be a typosquatting registration.
Typosquatting itself is evidence of relevant bad faith registration and use as a form of disruption to the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
It is noted that the Respondent has also registered a number of other domain names containing the marks of third parties including the famous mark PEPSI CO which appears to constitute a bad faith cybersquatting pattern of activity.
As such, the Panel holds that the 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 under ¶¶ 4(b)(ii) and (iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <solarsturbine.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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