Solar Turbines Incorporated v. otumba david
Claim Number: FA1912001873699
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie H. Bald of Kelly IP, LLP, United States. Respondent is otumba david (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sollarturbines.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 3, 2019; the Forum received payment on December 3, 2019.
On December 6, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <sollarturbines.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 December 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 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@sollarturbines.com. Also on December 6, 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 30, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Solar Turbines, is in the business of design and manufacture of industrial gas turbines and turbomachinery.
Complainant has rights in the SOLAR TURBINES mark based upon registration with the Mexican Institute of Industrial Property (“MIIP”).
Respondent’s <sollarturbines.com> domain name is identical and/or confusingly similar to Complainant’s mark because it is a misspelling of Complainant’s SOLAR TURBINES mark that simply duplicates a single letter and adds the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <sollarturbines.com> domain name. Respondent is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent passively holds the disputed domain name without making active use of it. Finally, the presence of typosquatting displays a lack of rights or legitimate interests in the domain name.
Respondent registered and uses the <sollarturbines.com> domain name in bad faith. Respondent displays a pattern of registering domain names comprising of registered marks and evidence exists showing adverse UDRP decisions against Respondent. Additionally, Respondent’s act of typosquatting evidences bad faith. Further, Respondent passively holds the domain name in bad faith. Finally, Respondent has actual knowledge of Complainant’s rights in the mark shown by previous registration of domain names incorporating Complainant’s marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the SOLAR TURBINES mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at-issue domain name after Complainant acquired rights in SOLAR TURBINES.
Respondent fails to make active use of the <sollarturbines.com> domain name and has engaged in a pattern of bad faith domain name registration.
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 at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a Mexican Institute of Industrial Property (“MIIP”) registration for its SOLAR TURBINES trademark as well as multiple other national registrations for SOLAR TURBINES. Any one of such registrations is sufficient to demonstrate Complainant’s rights in the SOLAR TURBINES mark under Policy ¶ 4(a)(i). See PineBridge Investments IP Holdings Limited v. uche victor, FA 1551301 (Forum May 6, 2014) (finding that Complainant’s registrations for the PINEBRIDGE mark with the USPTO, as well as the MIIP were sufficient to establish rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <sollarturbines.com> domain name contains Complainant’s <sollarturbines.com> trademark less its domain name impermissible space with an additional “l” added and all followed by the top-level domain name “.com.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <sollarturbines.com> domain name from the SOLAR TURBINES trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <sollarturbines.com> domain name is confusingly similar to Complainant’s SOLAR TURBINES trademark. See ModCloth, Inc. v. James McAvoy, FA 1629102 (Forum Aug. 16, 2015) (“The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark because it differs from Complainant’s mark by merely adding the letter ‘L’ . . . ”); see also, SCOLA v. Wick, FA 1115109 (Forum Feb. 1, 2008) (concluding that “the domain name at issue is identical to [the] complainant’s SCOLA mark, as the only alteration to the mark is the addition of the generic top-level domain “.com.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “otumba david” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <sollarturbines.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <sollarturbines.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Additionally, Respondent holds its <sollarturbines.com> domain name passively. Attempting to browsing to the at-issue domain name returns an error message. Respondent’s inactive holding of the at-issue domain name shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012) (finding inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.”)
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent passively holds the at-issue domain name. Respondent’s passive holding of the <sollarturbines.com> domain name shows Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Next, there is an array of UDRP decisions adverse to Respondent where the at-issue domain name was transferred away from Respondent. Some of these decisions involve Complainant’s SOLAR TURBINES and SOLAR marks. Respondent’s apparent pattern of bad faith domain name registration suggests the at-issue domain name was likewise registered and used in bad faith pursuant to Policy ¶ 4(b)(ii). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”).
Furthermore, Respondent’s overt misspelling of Complainant’s trademark in the at-issue domain name shows that Respondent is engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name hoping that internet users will either: 1) inadvertently type the malformed string when searching for products or services related to the domain name’s target trademark; and/or 2) in viewing the domain name will confuse the domain name with its target trademark. Here, in creating the at-issue domain name Respondent misspells Complainant’s SOLAR TURBINES trademark by inserting an additional “l” into the mark. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent had actual knowledge of Complainant’s rights in the SOLAR TURBINES mark when it registered <sollarturbines.com> as a domain name. Respondent’s actual knowledge is evident from its incorporation of an overt misspelling of Complainant’s well-known trademark into the at-issue domain name as well as from Respondent’s prior use of Complainant’s mark(s) in other domain names that were the subject of prior UDRP proceedings adverse to Respondent. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sollarturbines.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 30, 2019
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