Cummins Inc. v. Waseem Naime / Kabul Cummins Parts and Technical Services Company / Kabul Cummins Technical Services Company
Claim Number: FA2305002044035
Complainant is Cummins Inc. (“Complainant”), represented by Tricia L. Schulz of Foley & Lardner LLP, Wisconsin, USA. Respondent is Waseem Naime / Kabul Cummins Parts and Technical Services Company / Kabul Cummins Technical Services Company (“Respondent”), Afghanistan.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <kabul-cummins.com> and <kbl-cummins.com>, registered with eNom, LLC; One.com A/S.
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 Forum electronically on May 10, 2023; Forum received payment on May 10, 2023.
On May 11, 2023, eNom, LLC; One.com A/S confirmed by e-mail to Forum that the <kabul-cummins.com> and <kbl-cummins.com> domain names are registered with eNom, LLC; One.com A/S and that Respondent is the current registrant of the names. eNom, LLC; One.com A/S has verified that Respondent is bound by the eNom, LLC; One.com A/S 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 May 16, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 5, 2023 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@kabul-cummins.com, postmaster@kbl-cummins.com. Also on May 16, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On June 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Panel finds that the domain names are under common control as the names of the registrants are the same, the names of the registrants’ companies are very similar, the websites displayed at these domains are similar and their “contact” pages display the same addresses. This is sufficient to find that the domain names were registered by the same domain name holder. See The Valspar Corporation v. Zhou Zhiliang / zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA100800133934 (Forum Sept. 28, 2010); see also BBY Solutions, Inc. v. White Apple / Dev Kumar, FA1805001787251 (Forum June 20, 2018).
Consequently, the Panel will rule on both contested domain names, and the registrants are collectively referred to as “Respondent”.
A. Complainant
Complainant states that it is a global power leader comprised of complementary business units that design, manufacture, distribute and service engines and related technologies, including fuel systems, controls, air handling, filtration, emission solutions, and electrical power generation systems. Complainant was founded in 1919, has more than 58,000 employees, and is dedicated to the research, development, manufacture and sale of diesel and natural gas engines, hybrid and electric power solutions and related technologies. Since 2020 alone, Complainant has rendered services and provided goods, the majority of which are CUMMINS-branded goods and services that have exceeded nineteen billion U.S. dollars ($19,000,000,000) in annual revenue. Complainant has rights in the CUMMINS mark through its registration in the United States in 1953. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain names are identical or confusingly similar to its CUMMINS mark as they incorporate the mark in its entirety, merely adding the geographic term “Kabul” or its abbreviation “kbl”, a hyphen, and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its CUMMINS mark in any way. Respondent does not use the disputed domain names for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving websites display Complainant’s mark and offer products and services that compete with those of Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Respondent disrupts Complainant’s business while attracting users for commercial gain and creating a likelihood of confusion by offering competing products and services. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the CUMMINS mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark CUMMINS dating back to 1957.
The disputed domain names were registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to websites that offer products and services that compete with those of Complainant.
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 names incorporate Complainant’s CUMMINS mark in its entirety, merely adding the geographic term “Kabul” or its abbreviation “kbl”, a hyphen, and the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding a geographic term or abbreviation, a hyphen, and a “.com” gTLD is insufficient in differentiating from the mark incorporated within the domain name. See Dell Inc. v. SNAB Corporation, FA 1785051 (Forum May 30, 2018) (finding the inclusion of a geographic term did not distinguish the domain name and increased possible confusion, as “[t]he geographic term “hyderabad” is also suggestive of Complainant as Complainant has corporate offices in Hyderabad, India.”); see also SEMCO Prods., LLC v. dmg world media (uk) ltd, FA 913881 (Forum Apr. 9, 2007) (finding that the <atlhomeshow.com> domain name was confusingly similar to the complainant’s ATLANTA HOME SHOW mark, as “atl” was a common abbreviation for the city of Atlanta); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug. 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Thus the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not authorized or permitted to use Complainant’s CUMMINS mark in any way and is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is known by the disputed domain name. 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). Where the WHOIS is related to the disputed domain name, the Panel may still find the respondent lacks rights or legitimate interest in the disputed domain name if the respondent lacks authorization to use the complainant’s mark and the respondent fails to provide affirmative evidence in support of its identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name identifies the registrant as “Waseem Naime / Kabul Cummins Parts and Technical Services Company / Kabul Cummins Technical Services Company” but Respondent provides no affirmative evidence in support of this identity and no evidence in the record suggests Respondent is authorized to use the CUMMINS mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
The resolving websites offer products and services that compete with those of Complainant. Under Policy ¶¶ 4(c)(i) and (iii), diverting users to a competing website is not a bona fide offering of goods or services, nor any noncommercial or fair use. See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”). The Panel therefore finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services, or a noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And 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 names.
Indeed, as already noted, the resolving websites offer competing products and services. Use of a disputed domain name to promote related products and services may be evidence of bad faith per Policy ¶ 4(b) (iv). See Asbury Auto Group Inc v. Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use); see also See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds bad faith registration and use per Policy ¶ 4(b)(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 <kabul-cummins.com> and <kbl-cummins.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 12, 2023
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