Solar Turbines Incorporated v. Harry Bradly
Claim Number: FA1911001870489
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie H. Bald of Kelly IP, LLP, District of Columbia, USA. Respondent is Harry Bradly (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solartrublnes.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 8, 2019; the Forum received payment on November 8, 2019.
On November 12, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <solartrublnes.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. 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 November 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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 postmaster@solartrublnes.com. Also on November 15, 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 December 9,2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is one of the world’s leading designers and manufacturers of industrial gas turbines and turbomachinery packages for use in the oil and gas and power generation industries. Complainant traces its roots to the 1920s through its predecessors Prudden-San Diego Airplane Company and Solar Aircraft Company. In November 2017, Complainant celebrated its 90th anniversary. Complainant’s products and services are offered in numerous locations worldwide. Its products operate in more than 100 countries and have provided more than 2.5 billion operating hours. Complainant has rights in the SOLAR TURBINES mark based upon its registration with multiple trademark agencies, including in Mexico in 2012.
Complainant alleges that the disputed domain name is confusingly similar to its mark because the domain name is simply a misspelling of Complainant’s mark that adds a generic top level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s SOLAR TURBINES mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name in connection with fraudulent e-mail activities in an attempt to defraud Complainant’s customers. Specifically, Respondent has used the disputed domain name to send e-mails from an e-mail address associated with the disputed domain name in which Respondent impersonated Complainant and an employee of Complainant for the purpose of attempting to defraud a customer of Complainant and divert the customer’s payment intended for Complainant to its own bank account. In the signature block, Respondent falsely identified the sending company as Complainant.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. First, Respondent uses the domain name for fraudulent activities that unfairly disrupt Complainant’s business. Second, Respondent had knowledge of Complainant’s rights in the SOLAR TURBINES mark based upon Respondent’s use of such mark for passing off activities.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SOLAR TURBINES and uses it to market industrial gas turbines and related products and services.
Complainant’s rights in its mark date back to 2012.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name has been used to send fraudulent phishing e-mails.
The signature block of the e-mails display Complainant’s mark.
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”).
The disputed domain name switches letters “r” and “u” in the word “turbines” and also replaces the letter “i” with the letter “l.” Such alterations in the spelling of a mark are insufficient to avoid a finding of confusing similarity. See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”). Further, the addition of a gTLD also does not overcome a finding of confusing similarity. See Daedong-USA, Inc. v. O’Bryan Implement Sales, FA 210302 (Forum Dec. 29, 2003) (“Respondent's domain name, <kioti.com>, is identical to Complainant's KIOTI mark because adding a top-level domain name is irrelevant for purposes of Policy ¶ 4(a)(i).”). Consequently, the Panel finds that the disputed domain name is confusingly similar to Complainant’s per Policy ¶ 4(a)(i).
Respondent is not licensed or authorized to use Complainant’s mark. Respondent is not commonly known by the disputed domain name: absent a reply, WHOIS information can be used to show that a respondent is not commonly known by a disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information of record indicates the registrant of the disputed domain name as “Harry Bradly.” Thus, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name in connection with fraudulent e-mail activities in an attempt to defraud Complainant’s customers. Specifically, Complainant provides evidence showing that Respondent has sent e-mails from an e-mail address associated with the disputed domain name in which Respondent impersonated Complainant and an employee of Complainant for the purpose of attempting to defraud a customer of Complainant and divert the customer’s payment intended for Complainant to its own bank account. This does not show legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name). Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). In addition, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent is disrupting Complainant’s business by passing off as Complainant in e-mails to Complainant’s customers. Use of a disputed domain name to send fraudulent e-mails can support a finding of bad faith registration through disruption of a complainant’s business under Policy ¶ 4(b)(iii). See Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Forum Oct. 6, 2015) (finding that Respondent’s use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii)); see also Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Thus, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶ 4(b)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: Respondent used Complainant’s mark in its fraudulent phishing e-mails. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, by merely misspelling Complainant’s mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(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 <solartrublnes.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 9, 2019
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