Hendrickson USA, L.L.C. v. Vicky Blanchard
Claim Number: FA2206002001503
Complainant is Hendrickson USA, L.L.C. (“Complainant”), represented by Jason A. Pittman of Dority & Manning, P.A., South Carolina, USA. Respondent is Vicky Blanchard (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hendriickson-intl.com>, (‘the Domain Name’) registered with NameCheap, Inc.
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 22, 2022; the Forum received payment on June 22, 2022.
On June 23, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <hendriickson-intl.com> Domain Name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 23, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 13, 2022 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@hendriickson-intl.com. Also on June 23, 2022, 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 19, 2022 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.
A. Complainant
The Complainant is the owner of the HENDRIKSON mark, registered, inter alia, in the United States for vehicle parts with first use recorded as 1913. It owns hendrikson-intl.com.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s trade mark adding only an extra letter ‘i’, a hyphen, the generic abbreviation ‘intl’ meaning international and the gTLD ‘.com’ which do not prevent the said confusing similarity.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name points to commercial pay per click links causing confusion with the Complainant and its mark which is not a bona fide offering of goods or services or legitimate non commercial or fair use.
The Domain Name differs by only one letter to the Complainant’s Domain Name. Typosquatting is registration and use in bad faith per se and shows actual knowledge of the Complainant, its rights and business. The Respondent did not reply to a cease and desist letter from the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the HENDRIKSON mark, registered, inter alia, in the United States for vehicle parts with first use recorded as 1913. It owns hendrikson-intl.com.
The Domain Name registered in 2022 has been pointed to commercial 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”).
The Domain Name consist of the Complainant's HENDRIKSON mark (which is registered in USA for vehicle parts with first use recorded as 1913), adding only an extra letter ‘i’, a hyphen, the generic abbreviation ‘intl’ short for international and the gTLD ‘.com’.
The Panel agrees that misspellings by one letter do not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy. See Twitch Interactive Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (where an additional ‘c’ was added). As such the addition of an extra ‘i’ does not prevent the Domain Name being confusingly similar to the Complainant’s trade mark under the Policy.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). Nor does the addition of a hyphen. See Health Devices Corp. v. Aspen STC, FA 158254 (Forum July 1, 2003) (The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4(a)(i).). The addition of the generic abbreviation ‘intl’ and a hyphen to the Complainant’s mark does not prevent confusing similarity between it and the Domain Name.
The gTLD ‘.com’ does not serve to distinguish a Domain Name from a Complainant’s 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 to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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 use is commercial so cannot be non commercial legitimate fair use.
Use for pay per click links does not constitute a bona fide offering of goods or services or a legitimate non commercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of .. domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
The Domain Name appears to be a typosquatting registration. Typosquatting is also an indication of a lack of rights or a legitimate interests. 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).”).
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 and the latter’s own domain name.
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 Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. 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 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 the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Use for pay per click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and can indicate actual knowledge of the Complainant and its business. In the opinion of the panelist the use made of the Domain Name is confusing and disruptive in that visitors to the site might reasonably believe they are connected to or approved by the Complainant. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to her website by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or goods and services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re diversion to pay per click links.
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.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hendriickson-intl.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 19, 2022
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