Solar Turbines Incorporated v. Toney Blire
Claim Number: FA2306002049678
Complainant is Solar Turbines Incorporated (“Complainant”), represented by Stephanie H. Bald of Kelly IP, LLP, District of Columbia, USA. Respondent is Toney Blire (“Respondent”), Mexico.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solartnrbines.com>, registered with NameCheap, Inc.
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 Forum electronically on June 19, 2023; Forum received payment on June 19, 2023.
On June 20, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <solartnrbines.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 21, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 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@solartnrbines.com. Also on June 21, 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 July 14, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Solar Turbines is one of the world’s leading designers and manufacturers of industrial gas turbines and turbomachinery packages for use in the oil and gas and power generation industries.
Complainant asserts rights in the SOLAR mark based upon registration with the United States Patent and Trademark Office (“USPTO”) as well as multiple registrations of such mark worldwide. Complainant also asserts common law rights in the SOLAR and SOLAR TURBINES marks.
The <solartnrbines.com> domain name is identical or confusingly similar to Complainant’s SOLAR TURBINES mark because the at-issue domain name is a simple misspelling of the mark that substitutes the letter “u” with the letter “n”. The disputed domain name also adds the generic top level domain (“gTLD”) “.com”.
Respondent has no legitimate interests in the <solartnrbines.com> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized or licensed Respondent any rights in the SOLAR or SOLAR TURBINES marks. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent has engaged in typosquatting. Also, Respondent fails to actively use the disputed domain name.
Respondent registered and uses the <solartnrbines.com> domain name in bad faith. Respondent has created a likelihood of confusion with Complainant’s marks. Respondent is disrupting Complainant’s business. The domain name is held passively. Respondent has engaged in typosquatting. Lastly, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SOLAR and SOLAR TURBINES marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the SOLAR TURBINES trademark.
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 the SOLAR TURBINES trademark.
Respondent holds the at-issue domain name passively.
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’s USPTO registration for SOLAR TURBINES, as well as any of its other trademark registrations for such mark worldwide, is sufficient to established Complainant’s rights in a mark under Policy 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
The at-issue domain name contains a recognizable misspelling of Complainant’s SOLAR TURBINES trademark where its spaces are omitted and its letter “u” is replaced by the letter “n”. The domain name concludes with the “.com” top-level. The differences between Respondent’s <solartnrbines.com> domain name and Complainant’s trademark are insufficient to distinguish one from the other under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <solartnrbines.com> domain name is confusingly similar to Complainant’s SOLAR TURBINES trademark. See WordPress Foundation v. Bernat Lubos, FA 1613444 (Forum May 21, 2015) (finding that the <worspress.org> domain name is confusingly similar to the WORDPRESS mark under Policy ¶4(a)(i), stating, “On a standard QWERTY keyboard, the letters ‘s’ and ‘d’ are adjacent. A minor misspelling is not normally sufficient to distinguish a disputed domain name from a complainant’s mark.”); see also Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”).
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, absent evidence of Policy ¶ 4(c) circumstances 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. 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 <solartnrbines.com> reveals that “Toney Blire” is the domain name’s registrant and there is no evidence in the record indicating that Respondent is otherwise known by <solartnrbines.com>. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent holds the at-issue domain name passively. There is no allegation or evidence in the record of any substantive content being addressed by <solartnrbines.com>; on browsing to the at-issue domain name an error message is returned. Respondent’s failure to actively use the domain name is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively 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).”)
Similarly Respondent’s typosquatting of Complainant’s trademark by registering <solartnrbines.com>--as elaborated below regarding Policy ¶ 4(a)(iii)‑-evidences that Respondent’s lacks rights and legitimate interests in <solartnrbines.com> 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).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name.
As discussed below without being exhaustive, bad faith circumstances are present from which the Panel concludes that Respondent registered and used the <solartnrbines.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and legitimate interests, Respondent holds <solartnrbines.com> passively. Respondent’s failure to actively use <solartnrbines.com> indicates Respondent’s bad faith registration and use of such domain name under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Notably, passive holding of a domain name has been viewed as a disruption to a complainant’s business under Policy ¶ 4(b)(iii). See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).).
Next and as mentioned above regarding rights and legitimate interests, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or as appears to be the case here will read the misspelled trademark laden domain name and nevertheless confuse it with its target trademark. Although misspelled by substituting the mark’s “u” with an “n”, Complainant’s trademark is nevertheless clearly recognizable when reading the <solartnrbines.com> domain name. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. 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)); see also, Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use).
Moreover, Respondent had actual knowledge of Complainant’s rights in the SOLAR TURBINES mark when it registered <solartnrbines.com> as a domain name. Respondent’s actual knowledge of Complainant’s rights is evident given the notoriety of Complainant’s trademark and given Respondent’s overt misspelling of Complainant’s mark in forming the domain name. Respondent’s registration of <solartnrbines.com> with knowledge of Complainant’s trademark rights SOLAR TURBINES further shows Respondent’s bad faith registration and use 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 <solartnrbines.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 16, 2023
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