Solar Turbines Incorporated v Najranps Project Sales
Claim Number: FA2001001879057
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie Bald of Kelly IP, LLP, United States. Respondent is Najranps Project Sales (“Respondent”), Singapore.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solerturbines.com> (‘the Domain Name’), registered with Hosting Concepts B.V. d/b/a Openprovider; Hosting Concepts B.V. d/b/a Openprovider.
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 January 15, 2020; the Forum received payment on January 15, 2020.
On January 6, 2020, Hosting Concepts B.V. d/b/a Openprovider; Hosting Concepts B.V. d/b/a Openprovider confirmed by e-mail to the Forum that the <solerturbines.com> domain name is registered with Hosting Concepts B.V. d/b/a Openprovider; Hosting Concepts B.V. d/b/a Openprovider and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Openprovider; Hosting Concepts B.V. d/b/a Openprovider has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Openprovider; Hosting Concepts B.V. d/b/a Openprovider 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 January 20, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 10, 2020 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 January 20, 2020, 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 February 12, 2020 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 summarised 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. It owns <solarturbines.com>.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s marks merely substituting an ‘e’ for the ‘a’ in SOLAR and adding a gTLD and adding ‘turbines’ in the case of the SOLAR mark, none of which prevents confusing similarity. It is a typosquatted domain.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant. Typosquatting is an indication of a lack of rights or legitimate interests. The Domain Name has been used for competing pay per click links which is not a bona fide offering of goods or services or a noncommercial legitimate or fair use.
Diverting users using the Domain Name to competing pay per click links 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 Complainant owns solarturbines.com.
The Domain Name registered in 2019 has been pointed to competing pay per click links.
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) merely substituting an ‘e’ for the ‘a’ in SOLAR and adding 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 to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorised 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).
The Respondent has used the site attached to the Domain Name for links, some of which offer competing services not connected with the Complainant. He does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See ALPITOUR SpA v Albloushi FA 888651 (Forum Feb 26, 2007) (rejecting the Respondent's contentions of rights and legitimate interests because the respondent was merely using the domain name to operate a web site containing links to various competing commercial web sites which the panel did not find to be bona fide use in relation to goods and service under the Policy.). The use is commercial and so cannot be a legitimate noncommercial fair use.
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). Typosquatting also indicates knowledge of the Complainant, its rights, business and products.
The Respondent is using the Domain Name to profit by linking to third party web sites in a confusing manner. The Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his websites by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site attached to the Domain Name and businesses on it. See Dovetail Ventures LLC v Klayton Thorpe, FA 1506001625786 (Forum Aug 2, 2015) (holding that the respondent had acted in bad faith under Policy 4(b)(iv) where it used the disputed domain name to host a variety of hyperlinks unrelated to the complainant’s business through which the Respondent presumably gained).
Further it has been held that such use is disruptive under Policy ¶ 4(b)(iii). See Adriana Inc v Moniker Privacy services, FA 1503001610020 (Forum May 1, 2015)(Using pay per click links redirecting users to competing web sites to disrupt and compete with a Complainant’s business is evidence of bad faith registration and use under Policy 4 (b)(iii).)
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)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <solerturbines.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 13, 2020
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