WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fluor Corporation v. Pioneer Enterprises Limited
Case No. D2010-1455
1. The Parties
The Complainant is Fluor Corporation of Irving, Texas, United States of America, represented by Melbourne IT DBS Inc., United States of America.
The Respondent is Pioneer Enterprises of St Johns, Antigua and Barbuda.
2. The Domain Name and Registrar
The disputed domain name <flurdaniel.com> is registered with Fabulous.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 31, 2010. On August 31, 2010, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the disputed domain name. On September 1, 2010, Fabulous.com. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint, further requesting the Complainant to list Fabulous.com as the concerned Registrar. The Center sent a Complaint Deficiency Notification to the Complainant on September 3, 2010 providing the registrant and contact information disclosed by the Registrar, and requested proof that payment had been made as the Center was not in receipt of the required fees in accordance with Rules, paragraph 19(a).
The Complainant filed an amended Complaint on September 14, 2010.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 21, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 11, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 15, 2010.
The Center appointed Fabrizio Bedarida as the sole panelist in this matter on October 29, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant, Fluor Corporation, was established as a construction company in 1912 under the name Fluor Construction Company. Fluor Corporation is a FORTUNE 150 company that is ranked No. 1 in FORTUNE magazine's ''Engineering, Construction'' category of America's largest corporations and considered one of the world’s safest contractors. Fluor Corporation has a global workforce of over 36,000 with offices/projects in more than 66 countries on 6 continents,
The Complainant’s US trademark FLUOR DANIEL was granted on June 5, 2001 with first use noted as January 1, 1988.
The Complainant also holds the domain names <fluordaniel.com> and <fluordaniels.com> that were registered on February 1, 1996 and August 30, 2000 respectively.
The disputed domain name was registered on October 8, 2005.
5. Parties’ Contentions
The Complainant claims that:
1) The disputed domain name <flurdaniel.com> is confusingly similar to the trademark FLUOR DANIEL, the absence in the disputed domain name of the letter “O” being the only difference between the two names.
2) The Respondent has no rights or legitimate interests in the domain name <flurdaniel.com>.
3) The Respondent is not commonly known by the disputed domain name. Moreover, the Respondent does not have any affiliation, association, sponsorship or connection with the Complainant and has not been authorized, licensed or otherwise permitted by the Complainant to register the concerned domain name and to use it.
4) The disputed domain name <flurdaniel.com> is not used for any bona fide offering of goods and services.
5) The disputed domain name <flurdaniel.com> is registered and is being used in bad faith.
6) The Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the website.
7) The Respondent had knowledge of the Complainant’s trademarks at the time of the registration of the disputed domain name.
8) The Respondent is using the disputed domain name to divert Internet traffic to Respondent’s website, where pay-per-click advertisements for the Complainant’s direct and indirect competitors are displayed.
9) The Respondent has included the disputed domain Name on SEDO.COM in order to sell it.
10) The Respondent has already been involved in six previous UDRP proceedings before WIPO and the National Arbitration Forum.
11) Respondent did not reply to Complainant’s cease and desist letter.
The Complainant requests to issue a decision that the disputed domain name <flurdaniel.com> be transferred to Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has prior rights in the trademark FLUOR DANIEL and has stated that the disputed domain name is almost identical to it.
In order to substantiate this claim, the Complainant has argued that the only difference between the two names is the absence of the letter “O” in the disputed domain name.
This Panel agrees with the Complainant’s contention that the lack of the sole letter “O” is not sufficient to avoid confusing similarity.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. A respondent in a UDRP proceeding does not assume the burden of proof, but may establish a right or legitimate interest in a disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy:
a) that before any notice to the respondent of the dispute, he or she used or made 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
b) that the respondent is commonly known by the domain name, even if he or she has not acquired any trademark rights; or
c) that the respondent intends to make a legitimate, non commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.
The Respondent has no connection or affiliation with the Complainant, which has not licensed or otherwise authorised the Respondent to use or apply for any domain name incorporating the Complainant’s trademark. The Respondent does not appear to be commonly known as “flurdaniel” or by a similar name and it has not alleged any facts or elements to justify rights and/or legitimate interest in the disputed domain name. The Respondent does not appear to make any legitimate use of the domain name for non commercial activities. Finally, the Respondent has not replied to the Complaint, proved or at least alleged in any other way any right in the disputed domain name.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
For the purpose of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s web site or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s web site or location or of a product or service on the holder’s web site or location.
Accordingly, for a complainant to succeed, the panel must be satisfied that the domain name has been registered and is being used in bad faith.
Considering the history of the Complainant’s trademark around the world and also in Barbados (i.e. in the same region where the Respondent is located), its extensive use also on the Internet through domain name registrations containing and/or corresponding to the Complainant’s trademarks (e.g. fluordaniel.com and fluordaniels.com) and in the absence of contrary evidence, the Panel finds that the Respondent had actual knowledge of the Complainant’s trademark when it registered the disputed domain name.
In addition, the Panel agrees with the Complainant’s assertion and UDRP jurisprudence that the fact that Respondent has engaged in the practice of typo-squatting constitutes proof of both bad faith registration and use in bad faith.
Moreover, the use of the disputed domain name to divert Internet traffic to the Respondent’s website where pay-per-click advertisements for the Complainant’s direct and indirect competitors are displayed and the fact that the domain name is placed on sale on SEDO.COM are further inferences of bad faith use.
Finally, in the absence of any Respondent’s rebuttal of the Complainant’s claims, or any other clue to the contrary available in the case file, the Panel accepts as true Complainant’s claims. See also Talk City, Inc. v. Robertson, WIPO Case No. D2000-0009: “Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint. The Rules expressly provide that the Panel "shall draw such inferences" from the Respondent’s failure to comply with the rules "as it considers appropriate." Rule 14(b). Moreover, when a respondent defaults, the Rules direct the Panel to "proceed to a decision on the complaint." Rule 14(a); see also Rule 5(e). Furthermore, the Panel is charged with rendering its decision "on the basis of the statements and documents submitted." Rule 15(a).”
Accordingly, the Panel finds on the basis of the evidence presented that the Complainant has satisfied paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <flurdaniel.com> be transferred to the Complainant.
Dated: November 10, 2010