Solar Turbines Incorporated v. Carl Strobel
Claim Number: FA2103001936332
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie H. Bald of Kelly IP, LLP, District of Columbia, USA. Respondent is Carl Strobel (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solrarturbines.com>, registered with Wild West Domains, LLC.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 11, 2021; the Forum received payment on March 11, 2021.
On March 12, 2021, Wild West Domains, LLC confirmed by e-mail to the Forum that the <solrarturbines.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, LLC 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 March 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 5, 2021 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@solrarturbines.com. Also on March 15, 2021, 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 April 12, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 is a leading designer and manufacturer of industrial gas turbines. Complainant has rights in the SOLAR TURBINES mark through its registration of the mark with the Mexican Institute of Industrial Property (“MIIP”) (e.g., Reg. 1332695, registered Nov. 29, 2012). Respondent’s <solrarturbines.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the SOLAR TURBINES mark in its entirety and merely adds the letter “r” to form a common misspelling of the mark and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <solrarturbines.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the SOLAR TURBINES mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to an inactive page and Respondent use the domain to pass itself off as Complainant in emails as part of a phishing scheme. Furthermore, Respondent engages in typosquatting.
Respondent registered and uses the <solrarturbines.com> domain name in bad faith. Respondent uses the disputed domain name to pass off as Complainant in emails in furtherance of a phishing scheme and disrupts Complainant’s business. Additionally, Respondent inactively holds the disputed domain name. Furthermore, Respondent’s bad faith is evidenced by the use of typosquatting. Finally, Respondent registered the disputed domain name with knowledge of Complainant’s rights in the SOLAR TURBINES mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <solrarturbines.com> domain name.
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”).
Complainant asserts rights in the SOLAR TURBINES mark based upon the registration with the MIIP (e.g., Reg. 1332695, registered Nov. 29, 2012).. Registration of a mark with the MIIP is a valid showing of rights in a mark. See Solar Turbines Incorporated v. Thomas Boys / zaza plc / nally micheal / zaza plc, FA 1769295 (Forum Mar. 5, 2018) (“Complainant provides evidence of its trademark registration for SOLAR TURBINES with MIIP and the Panel finds that it has trademark rights in that expression.”). Complainant provided evidence of registration of the SOLAR TURBINES mark with the MIIP. The Panel finds that Complainant has rights in the mark under Policy 4(a)(i).
Complainant argues Respondent’s <solrarturbines.com> domain name is identical or confusingly similar to Complainant’s SOLAR TURBINES mark as it contains the SOLAR TURBINES mark in its entirety and merely adds the letter “r” to form a common misspelling of the mark and the “.com” gTLD. The addition of a letter and gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel finds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <solrarturbines.com> domain name since Respondent is not commonly known by the disputed domain names and Complainant has not authorized Respondent to use the SOLAR TURBINES mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Carl Strobel” and there is no other evidence to suggest that Respondent was authorized to use the SOLAR TURBINES mark. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the <solrarturbines.com> domain name resolves to an inactive page and Respondent use the domain to pass itself off as Complainant in emails as part of a phishing scheme. The use of a disputed domain name to pass off as a complainant in order to engage in phishing is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”). Additionally, failure to resolve a disputed domain name to an active website also does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”). Complainant provides screenshots of fraudulent emails sent by Respondent passing itself off as Complainant. Complainant also provides a screenshot showing the disputed domain name resolves to an error message. The Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent lacks rights and legitimate interests in the <solrarturbines.com> domain name because Respondent engages in typosquatting. Typosquatting may act as independent evidence that a respondent lacks rights and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”) Complainant argues that Respondent’s addition of the letter “r” in the SOLAR TURBINES mark constitutes typosquatting. The Panel finds that Respondent lacks rights and legitimate interests in respect of the domain name under Policy ¶ 4(a)(ii).
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <solrarturbines.com> domain name in bad faith because Respondent uses the disputed domain name to pass itself off as Complainant in emails in furtherance of a phishing scheme and diverts customers away from Complainant’s legitimate website. Where the respondent uses a disputed domain name to pass itself off as a complainant, the Panel may find evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See 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)”). Complainant provides screenshots of fraudulent emails sent by Respondent. This is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant argues Respondent’s inactive holding of the <solrarturbines.com> domain name is evidence of bad faith registration and use. Inactive holding of a disputed domain name can demonstrate bad faith registration and use per Policy ¶ 4(a)(iii). See State Farm Mutual Automobile Insurance Company v. Dr. Keenan Cofield, FA 1799574 (Forum Sep. 10, 2018) (finding bad faith under Policy ¶ 4(a)(iii) where “the domain name initially resolved to a web page with a “website coming soon” message, and now resolves to an error page with no content). Complainant provides a screenshot of the disputed domain resolving to an error message. This is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant also argues that Respondent’s use of typosquatting indicates bad faith registration and use. Typosquatting may act as independent evidence of bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Complainant argues that Respondent’s addition of the letter “r” in the SOLAR TURBINE mark constitutes typosquatting. The Panel agrees and finds this is evidence of find bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant argues that Respondent had knowledge of Complainant’s rights in the SOLAR TURBINES mark at the time of registering the <solrarturbines.com> domain name. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).); see also iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support this assertion, Complainant points to its trademark registrations as well as its commercial presence and reputation. The Panel finds that Respondent did have actual knowledge of Complainant’s right in its mark, and registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <solrarturbines.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
April 20, 2021
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