Hewlett-Packard Development Company, L.P. v. Justin Jackson
Claim Number: FA1405001557999
Complainant is Hewlett-Packard Development Company, L.P. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Justin Jackson (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hpondemand.com>, registered with GODADDY.COM, 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.
Hugues G. Richard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 7, 2014; the National Arbitration Forum received payment on May 7, 2014.
On May 8, 2014, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <hpondemand.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, 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 May 12, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 2, 2014 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@hpondemand.com. Also on May 12, 2014, 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.
A timely Response was received and determined to be complete on May 21, 2014.
An Additional Submission was received from Complainant on May 23, 2014 and determined to be compliant.
An Additional Submission was received from the Respondent on May 28, 2014 and determined to be compliant.
On May 29, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hugues G. Richard as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Policy ¶4(a)i) – The domain name that Respondent registered, <hpondemand.com>, is confusingly similar to Complainant’s HP trademark.
a. Complainant is one of the world’s largest Information Technology companies, with revenue totaling more than $120 billion for fiscal 2012.
b. Complainant began using the HP trademark at least as early as 1941, and is now widely recognized and famous. Complainant owns registrations for the HP mark with the United States Patent and Trademark Office (“USPTO”) as well as in countries internationally (Reg. No. 1,116,835, registered April 24, 1979); (Reg. No. 1,840,215 registered June 21, 1994).
c. Respondent’s <hpondemand.com> domain name is confusingly similar to Complainant’s HP mark.
i. Respondent’s <hpondemand.com> domain name contains Complainant’s HP mark in its entirety and adds the generic phrase “on demand”. Respondent additionally adds the generic top-level domain (“gTLD”) “.com.”
ii. “On demand” is a type of printing technology in which new copies of a document are not printed until an order has been received. See Exhibit F.
2. Policy ¶4(a)ii) - Respondent has no rights or legitimate interests in the <hpondemand.com> domain name.
a. Respondent is not commonly known by the disputed domain name.
i. The WHOIS information for Respondent’s disputed domain name identifies Respondent as “Justin Jackson.”
ii. Complainant asserts that Respondent is not licensed by Complainant to use Complainant’s HP mark.
b. Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.
i. The landing page for the disputed domain name displays pay-per-click advertising and prominent solicitation including, “would you like to buy this domain?” See Complainant’s Exhibit G.
ii. Complainant alleges that the pay-per-click links promote competitors of Complainant, along with unrelated parties and products.
3. Policy ¶4(a)iii) - Respondent registered and is using the <hpondemand.com> domain name in bad faith.
a. Respondent solicits purchase inquiries for the disputed domain name.
b. Respondent’s promotions for Complainant’s competitors, using Complainant’s HP mark, diverts and disrupts Complainant’s business and falls under Policy ¶ 4(b)(iii).
c. Respondent is attempting to commercially benefit, unfairly and opportunistically, from the goodwill associated with Complainant’s trademark. Complainant asserts that Respondent uses Complainant’s HP mark to host a commercial website displaying pay-per-click links for third-parties.
d. Respondent registered the disputed domain name with knowledge of Complainant’s rights, and intended to create an association with Complainant and its products and services.
B. Respondent
1. Policy ¶4(a)i) – The domain name that Respondent registered, <hpondemand.com>, is not confusingly similar to Complainant’s HP trademark.
a. The Panel notes that Respondent registered the <hpondemand.com> domain name on March 27, 2010. The Complainant developed services using the term “on demand’’ over the last several post-2010 years. There is no evidence that Respondent had knowledge of these future product launches by Complainant when he registered the <hpondemand.com> domain name.
b. Respondent has not used the domain name for any commercial manner since that date. Respondent is developing a creative and potentially highly lucrative business plan to be marketed in part with the domain name. Due to challenges in funding caused primarily by the downturn in the economy in 2009 and 2010, Respondent’s domain name and intended business has not yet been launched.
c. The term “on demand” is generic and cannot be specifically tied to any technology or process developed, owned, or registered by Complainant. The term “on demand” is frequently used to describe the immediate or near immediate availability of a product or service.
d. The HP mark is also held by HealthPro Management Services LLC for business management consulting and management consulting in the healthcare field, Warner Brothers Entertainment for clothing, Hyannis Port Yacht Club, Inc., Happy’s Pizza Company, and HP Beauty Supply.
2. Policy ¶4(a)ii) - Respondent has rights and legitimate interests in the <hpondemand.com> domain name.
a. Respondent has developed a bona fide business plan in connection with the <hpondemand.com> domain name. See Respondent’s Exhibit J.
i. Respondent’s business plan revolves around the ability for HP sauce lovers in the United States to locate a store selling HP sauce. HP sauce, invented by Harry Palmer in 1903, is a key accessory in the United Kingdom, for a morning meal or for steak at dinner. HP sauce is often mistaken in the United States for A-1 sauce, however, Respondent states it is much different.
b. Respondent states that funds will be raised to launch its business plan. If needed, Respondent states that it can supply statements attesting to fund-raising discussions that took place between 2010 and 2013.
c. Respondent has a history of launching successful online businesses including <charmpicks.com>, <simplyanne.com>, <hotwheelscakes.com>, and a successful trademark registration for MYCOMMENTS (Serial 76045244).
d. Respondent is in no way using the disputed domain name to attract Internet traffic to a website, nor has the Respondent entered into any parking agreement with a third party. Respondent has not commercially benefitted from the use of the disputed domain name.
e. The website resolving from the <hpondemand.com> domain name is not controlled by Respondent, and the content was placed there by GoDaddy.
3. Policy ¶4(a)iii) - Respondent did not register and is not using the <hpondemand.com> domain name in bad faith.
C. Complainant’s Additional Submissions
1. In its additional submission, Complainant makes the following contentions:
a. Complainant has been using the phrase “on demand” to identify its services, including on demand computing and on demand printing, for well over a decade. Complainant was heavily promoting on demand services in 2009 and 2010. See Complainant’s Additional Submission Exhibit A.
b. Combining a generic phrase such as “on demand” with a well-known mark like HP does not alleviate confusion, and so this alone supports a finding of confusing similarity.
c. For four years prior to this proceeding, Respondent has only used the disputed domain name to promote the sale of the disputed domain and monetize the disputed domain through pay-per-click advertising.
d. Respondent is fully responsible for the content displayed on the resolving website. Respondent is free to redirect the disputed domain name at any time, so Respondent’s attempt to place responsibility for the displayed content with GoDaddy is misleading. Although Respondent stated he would gladly change the landing page to a blank page, Respondent has failed to do so up to this point. See Complainant’s Additional Submission Exhibit B.
e. Respondent’s explanation that he is using the <hpondemand.com> domain name in conjunction with a business plan lacks credibility and contradicts the evidence of recording, including:
i. The plan is not supported by any objective evidence;
ii. The plan is inconsistent with the actual use of the disputed domain name to display pay-per-click advertising and solicitations to sell;
iii. The plan is undated;
iv. The plan is improbable on its face; and
v. Respondent offers no explanation as to why he chose the disputed domain name over <hpsauceondemand.com>, which was available when Respondent registered the disputed domain name.
D. Respondent’s Additional Submissions
1. In its additional submission, Respondent makes the following contentions:
a. The term “on demand” is not well-known by the general public as in any way related to Complainant.
i. The term “on demand” was not marketed in any broad manner to the general public until most recently.
ii. Respondent claims that the existence of materials that reference the terms “on demand” as a need of potential clients is different than using the term “on demand” adjacent to the mark itself or in any way establishes a public connection between the Complainant’s mark and the term.
b. Respondent has not engaged with the registrar for any parking services.
c. Respondent submits Exhibit E as a proof of discussions for potential funding regarding the business plan submitted as Exhibit J of the original response.
d. The assertion the public associates HP with the term “on demand” is false and the free parked domain <hpondemand.com> should not be considered to be receiving commercial attention. Findings demonstrate that no searches have been made on public domain search using “HP on demand”. See Respondent’s Additional Submission Exhibit B.
Complainant owns registrations for the HP trademark with the United States Patent and Trademark Office (‘’USPTO’’) (Reg. No. 1,116,835, registered April 24, 1979); (Reg. No. 1,840,215 registered June 21, 1994).
HP is one of the world’s largest Information Technology companies. Over the past decades, this trademark has been recognized as a famous trademark by previous UDRP Panelists (See e.g. Hewlett-Packard Co. v. Rayne, FA0110000101465 (Nat. Arb. Forum Dec. 17, 2001); Hewlett-Packard Co. v. Homepage Org., FA 94446 (Nat. Arb. Forum May 11, 2000); Hewlett-Packard Dev. Co., L.P. v. Nelson, D2012-2315 (WIPO Feb. 7, 2013); Hewlett-Packard Co. v. Hwan, FA 95358 (Nat. Arb. Forum Sept. 7, 2000); Hewlett-Packard Co. v. Compu-D Int’l Inc., FA 99660 (Nat. Arb. Forum Oct. 5, 2001); Hewlett-Packard Co. v. Zwahlen, FA 99755 (Nat. Arb. Forum Oct 24, 2001); Hewlett-Packard Dev. Co., L.P. v. Mirzaitov, FA1110001412435 (Nat. Arb. Forum Nov. 15, 2011); and Hewlett-Packard Dev. Co., L.P. v. Fransson, DNU2013-0005 (WIPO Dec. 23, 2013). The Panel acknowledges the fact that other companies use HP as a mark. However, this does not diminish in any way the recognition of HP as an international, famous and renowned mark.
Respondent is an entrepreneur from the United States with a history of launching businesses online such as <www.Charmpicks.com>, <www.simplyanne.com>, <www.hotwheelcakes.com> or <Mycomments.com>. On March 27, 2010, Respondent registered the <hpondemand.com> domain name with GODADDY.COM. According to the information provided by the Domain Registrar, registration expiration date of <hpondemand.com> is on March 27, 2015. The Respondent considers the launching of “hpondemand.com” not possible until 2015 at the earliest.
The Respondent admits that the term “on demand” is generic.
The landing page for the disputed domain is controlled by GODADDY.COM and has been untouched since registration in 2010. Respondent has not used the disputed domain name in connection with his prospective business ever since. The landing page displays pay-per-click advertising and solicitation to buy the disputed domain name since March 2010.
The Respondent would gladly change the launching page to a blank page but has not done so.
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.
Complainant contends it began using the HP trademark at least as early as 1941, and is now widely recognized and famous. Complainant states it owns registrations for the HP mark with the USPTO (Reg. No. 1,116,835, registered April 24, 1979); (Reg. No. 1,840,215 registered June 21, 1994).
The Panel agrees that Complainant has rights in the HP mark within the meaning of Policy ¶ 4(a)(i) because Complainant holds several registrations for the mark with the USPTO. See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)).
Complainant alleges that Respondent’s <hpondemand.com> domain name is confusingly similar to Complainant’s HP mark. Complainant states that Respondent’s <hpondemand.com> domain name contains Complainant’s HP mark in its entirety and adds the generic phrase “on demand.” Complainant observes that Respondent additionally adds the gTLD “.com.”
Complainant notes that “on demand” is a type of printing technology in which new copies of a document are not printed until an order has been received. See Complainant’s Exhibit F.
In its Additional Submission, Complainant adds that it has been using the phrase “on demand” to identify its services, including on demand computing and on demand printing, for well over a decade. Complainant states it was heavily promoting on demand services in 2009 and 2010. See Complainant’s Additional Submission Exhibit A.
The Respondent admits that the term “on demand” is generic.
The Panel agrees that the addition of a generic term or phrase to a trademark in a disputed domain name does not sufficiently distinguish the disputed domain name from the trademark. See Quixtar Inv., Inc. v. Smithberger, D2000-0138 (WIPO Apr. 19, 2000) (finding that because the domain name <quixtar-sign-up.com> incorporates in its entirety the complainant’s distinctive mark, QUIXTAR, the domain name is confusingly similar). This is particularly true when the trademark is famous.
Next, the Panel considers that the addition of a gTLD is irrelevant for the purposes of confusing similarity analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶4(a)(i) analysis.”).
In sum, the Panel determines that the <hpondemand.com> domain name is confusingly similar to Complainant’s HP mark pursuant to Policy ¶4(a)(i) as the addition of a generic phrase and gTLD are insufficient for differentiation purposes. Following these conclusions, the Panel finds the determination of whether the term “on demand” is tied to the Complainant’s mark neither relevant nor necessary under Policy ¶4(a)(i).
The relevant provision of the UDRP in relation to the issue of rights or legitimate interests in a domain name is paragraph 4(c) of the Policy, which provides examples of how a respondent may demonstrate its rights to and legitimate interests in a domain name, in responding to a complaint. These are:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
It has been established in previous UDRP panel decisions (both under the National Arbitration Forum and WIPO) that a complainant must first establish a prima facie case that the respondent lacks rights and legitimate interests in respect of the domain name in dispute, after which the burden shifts to the respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent has no rights or legitimate interests in the <hpondemand.com> domain name. Complainant asserts that Respondent is not commonly known by the disputed domain name. Complainant notes that the WHOIS information for Respondent’s disputed domain name identifies Respondent as “Justin Jackson.” Complainant also asserts that Respondent is not licensed by Complainant to use Complainant’s HP mark. Past panels have looked to the WHOIS record, whether the respondent was authorized to use the trademark and the evidence on record as whole in determining whether the respondent is commonly known by the disputed domain name. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Therefore, because Respondent was not authorized by Complainant to use the HP mark, and neither the WHOIS information nor the other evidence on record indicates otherwise, the Panel considers that Respondent is not commonly known by the <hpondemand.com> domain name under Policy ¶4(c)(ii).
Additionally, Complainant argues that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Complainant states that the landing page for the <hpondemand.com> domain name displays pay-per-click advertising and prominent solicitation including “Would you like to buy this domain?”. See Complainant’s Exhibit G. Complainant alleges that the pay-per-click links promote competitors of Complainant, along with unrelated parties and products. In past cases, panels have held that using a confusingly similar domain name to host pay-per-click links fails to demonstrate a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii)).
Complainant argues that Respondent’s explanation that he is using the <hpondemand.com> domain name in conjunction with a business plan lacks credibility and contradicts the evidence of recording, including (1) the plan is not supported by any objective evidence, (2) the plan is undated, (3) the plan is improbable on its face, (4) Respondent offers no explanation as to why he chose the disputed domain name over <hpsauceondemand.com>, which was available when Respondent registered the disputed domain name, and (5) the plan is inconsistent with the actual use of the disputed domain name to display pay-per-click advertising and solicitations to sell. To this last point, Complainant notes that for four years prior to this proceeding Respondent has only used the disputed domain name to promote the sale of the disputed domain and monetize the disputed domain through pay-per-click advertising.
Respondent argues that the website resolving from the <hpondemand.com> domain name is not controlled by Respondent, and the content was placed there by GoDaddy.
Past panels have found that a respondent does not have rights or legitimate interests when the respondent has not made demonstrable preparations for any permissible use a of disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that when the respondent declares its intent to develop a website, “[Policy ¶]4(c)(i) requires Respondent to show 1) ‘demonstrable’ evidence of such preparations to use the domain name, and 2) that such preparations were undertaken ‘before any notice to [Respondent] of the dispute’”); see also Beat the Bookstore, LLC v. May Enter., FA 589501 (Nat. Arb. Forum Dec. 19, 2005) (finding that the respondent’s “protracted period of inaction” in its development of the disputed domain name for over two years indicated that the respondent had no rights or legitimate interests in the disputed domain name).
The Panel will not rule on the quality of the Respondent’s business plan as submitted as Exhibit J or on Complainant’s contentions regarding Respondent’s alleged business plan. However, previously stated findings demonstrate a lack of legitimate interest by the Respondent. Having registered the <hpondemand.com> domain name in 2010, it is surprising that Respondent could not find any way of using the domain name in order to promote his alleged business idea, with or without funding. Respondent previously stated the inability to raise sufficient funding before 2015. Considering that the Registrar Registration Expiration Date, as submitted by WHOIS, is March 2015, Respondent will not have used the disputed domain name throughout the period during which it has been assigned to him. Legitimate interest comes from the use of the litigious domain name in the course of user’s activities. Policy ¶4(a)(ii) intends to protect entrepreneurs’ activities and/or any goodwill related to their domain name. A total absence of business activities can only result in a total absence of goodwill. In the present case, the record contains insufficient evidence to support the idea that Respondent is using or preparing to use the disputed domain name. Therefore, absence of use of a domain name by Respondent cannot result in a legitimate interest in the disputed domain name.
Finally, the Panel agrees with past panels who have held that a respondent’s willingness to sell a disputed domain name generally provides further evidence that the respondent lacks rights or legitimate interests in the disputed domain name. See Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that under the circumstances, the respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name). Therefore, the Panel finds that Respondent is not making a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii) because the <hpondemand.com> domain name is being used to display pay-per-click links as well as a general solicitation offering the disputed domain name for sale.
Pursuant to Policy ¶4(a)(ii), Respondent does not have rights or legitimate interests in the <hpondemand.com> domain name because Respondent has not used nor made any legitimate and credible preparations to use the disputed domain name for a permissible use.
Complainant claims Respondent registered the disputed domain name with knowledge of Complainant’s rights, and intended to create an association with Complainant and its products and services.
Respondent is an entrepreneur from the United States with a history of launching businesses online. Previously-established recognition of HP as a famous mark and Respondent’s experience with online businesses should have made him aware of Complainant’s trademark as well as of the definition of “on demand” in technology and computer engineering at the time Respondent registered the disputed domain name. The Panel concludes that Respondent had actual notice of Complainant's mark and thus registered the disputed domain name in bad faith under Policy ¶4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration”).
As for use of the disputed domain in bad faith, Complainant alleges that Respondent is attempting to commercially benefit, unfairly and opportunistically, from the goodwill associated with Complainant’s trademark. Complainant asserts that Respondent uses Complainant’s HP mark to host a commercial website displaying pay-per-click links for third-parties. See Complainant’s Exhibit G. In such instances, panels have found that the respondent had acted in bad faith via attraction for commercial gain, pursuant to Policy ¶4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
Respondent argues that he has not commercially benefitted from the use of the disputed domain name and that the content on the <hpondemand.com> domain name was placed there by GoDaddy.
On the other hand, in its Additional Submission, Complainant claims Respondent is fully responsible for the content displayed on the resolving website. Complainant states that Respondent is free to redirect the disputed domain name at any time, so Respondent’s attempt to place responsibility for the displayed content with GoDaddy is misleading. Complainant also notes that, although Respondent stated he would gladly change the landing page to a blank page, Respondent has failed to do so up to this point. See Complainant’s Additional Submission Exhibit B. Had the Respondent been in good faith, he would, under the circumstances, have changed the launching page to a blank page.
The fact that the landing page of <hpondemand.com> solicits purchase inquiries for the disputed domain name and contains at least one link to the Complainant’s competitor (see Complainant’s exhibit G) and the fact that Respondent never used the domain name throughout the last four years are separatly insufficient to support a finding of bad faith under the Policy. The Panel considers these facts as suggestive, but not constitutive, of bad faith under Policy ¶4(a)(iii). However, Past panels have found that even if a respondent is not commercially benefiting from a parked website, the respondent may still be responsible for the content displaying therein. See Baylor Univ. v. Red Hot Web Gems, Inc., FA 1082178 (Nat. Arb. Forum Dec. 3, 2007) (finding that, even though a respondent does not receive any revenue from the hyperlinks displayed on the website and that the revenues are received by the parking service, a respondent still registered and used the domain name in bad faith because a respondent still allowed the parking service to access the domain name, instead of resolving the webpage to a blank page). Thus, elements suggesting bad faith only confirm the bad faith already established by Respondent’s failure to modify the landing page.
The overall evidence presented by Complainant supports a finding that Respondent registered and used the <hpondemand.com> domain name in bad faith pursuant to pursuant to Policy ¶4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hpondemand.com> domain name be TRANSFERRED from Respondent to Complainant.
Hugues G. Richard, Panelist
Dated: June 11, 2014
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