WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kaman Corporation v. Kaman Corp, coco march
Case No. D2011-1498
1. The Parties
The Complainant is Kaman Corporation, Bloomfield, Connecticut, United States of America, represented by Cantor Colburn LLP, United States of America.
The Respondent is Kaman Corp, coco march of Ham Lake Minnesota, United States of America.
2. The Domain Name and Registrar
The disputed domain name <kamanonline.com> is registered with eNom, Inc. (“eNom”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on September 6, 2011. On September 7, 2011, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On September 7, 2011, eNom transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from the named Respondent and contact information in the Complaint. On September 12, 2011, the Center provided Complainant the registrant and contact information disclosed by eNom by email and invited Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on September 16, 2011. The Center verified that the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 20, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 10, 2011. No Response was filed with the Center by that date. However, on September 22, 2011, the Center received the following email communication:
i just received an ups certefied letter regarding a case no D2011-1498.
this letter comes with your logo. The sender, claims to be arbitrating for intelectual property of a
website KamanOnline.com. I do not own that domain but when visiting WhoIsWho.com i do see
someone has registered my name and address as the owner. Regardless, it appears to me as a
Please, let me know if you would like me to send you a copy or if in fact the case number belongs to your company and someone is using my information to purchase online domains under my name without authorization.
D2011-1498 26/10/2011 (CJ)
The Center responded, requesting a copy of the letter referred to. In subsequent communications, the Center was sent a copy of the materials it (which it confirmed had been sent by it) and another message, in which the sender reiterated “I have no interest on such domain …. Further, the address used in the listing of ‘who is who’ is not my business address either, it’s a private residence that I have leased.”
The Center appointed Debra J. Stanek as the sole panelist in this matter on October 26, 2011. 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
Complainant is, and has for many years been, a leader in the aerospace industry and industrial products market. It has used the KAMAN mark in connection with its goods and services for decades.
The disputed domain name was registered in May 2011. The domain name is currently inactive, but initially resolved to a website that was “under construction.” Complainant claims that Respondent has used the domain name in email communications with third parties as part of a scheme to defraud those third parties.
5. Parties’ Contentions
1. Identical or Confusingly Similar
Complainant is a leader in the aerospace industry and industrial products market. The company was established in 1945 and began using the KAMAN mark in 1950. Complainant and its subsidiaries use the mark KAMAN in connection with a variety of goods and services, including a number of aircraft components and items used in fixed and rotary wing aircraft, arming components of missile and bombing systems, among others. It (or its subsidiaries) has used the KAMAN mark continuously in the United States and numerous other countries since 1950, gaining wide recognition.
Complainant owns a United States federal trademark registration for the mark KAMAN for distribution of bearings and industrial supplies, registered in 1976. Complainant also operates its corporate website under the domain name <kaman.com>; its subsidiaries operate websites at “www.kamaonacro.com” and ”www.kamandirect.com”.
The <kamaononline.com> domain name is confusingly similar to the KAMAN mark because it incorporates the mark in its entirety. The dominant feature of the domain name is the KAMAN mark, followed by the generic term “online.” The term “online” does not distinguish the domain name from Complainant’s mark and in fact makes confusion more likely.
2. Rights or Legitimate Interests
The disputed domain name was registered in May 2011 to “Kamanonline.com, Whois Privacy Protection Service, Inc. “. The privacy shield was removed after the filing of the Complaint and Respondent was identified as “Kaman Corp”, apparently in care of an individual named “Coco March”.
The domain name was registered long after Complainant’s rights in the KAMAN mark had been established in the United States and throughout the world.
Despite the fact that the registration was made in the name “Kaman Corp”, Respondent is not commonly known by the domain name and is not making legitimate noncommercial or fair use of the domain name.
Respondent is not related to Complainant in any way that would give Respondent any right to use or own the domain name.
3. Registered and Used in Bad Faith
Respondent’s use of the disputed domain name is not legitimate. Respondent is using the domain name to impersonate Complainant and Complainant’s subsidiary, Kaman Industrial Technologies.
Respondent registered and is using the domain name to further an identity theft scheme. It has created a fake website and uses an email address that includes the domain (i.e. “@kamanonline.com”) to perpetuate the scheme. Respondent contacts vendors by email, using the name of a senior financial officer of its subsidiary, Kaman Industrial Technologies. The email messages purport to be from the officer from an “@kamanonline.com” email address, but the officer is not actually involved with these messages. Using Kaman’s corporate information, Respondent establishes a line of credit with the vendor, and then orders merchandise, which is shipped to an address that is not associated with Complainant.
The website associated with the domain name prominently features the KAMAN mark, which appears to have been cut and paste directly from Complainant’s own website, and an “under construction” message.
The foregoing demonstrates that Respondent registered and is using the domain name to attract visitors for commercial gain, by creating a likelihood of confusion with Complainant’s KAMAN mark.
Complainant attempted to resolve this matter by requesting the transfer of the disputed domain name in correspondence dated August 11, 2011. Complainant received no answer.
It is clear, from its use of the well-known KAMAN mark and the name of the employee of an affiliated company, along with registration under a privacy service, that Respondent was aware of Complainant at the time it registered and began using the domain name. The foregoing facts establish Complainant’s registration and use of the domain name in bad faith.
As noted above, Respondent did not formally respond to the Complaint.
6. Discussion and Findings
A. Procedural Matters
The Rules define the “Respondent” as “the holder of a domain-name registration against which a complaint is initiated.” See Rules, paragraph 1, s.v. “Respondent.” The Panel is of the view that a complaint is “initiated” when it is filed with the Center as described in the Rules, paragraph 3. This is consistent with the paragraph 3(a) of the Rules1, which provides (emphasis added):
Any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the Policy and these Rules to any Provider approved by ICANN.
Therefore, under the Panel’s view, the original complaint correctly named the identity shield service as Respondent.
It was only after this proceeding was filed and commenced that eNom identified as “Kamon Corp, coco march” as the registrant. Complainant thereafter amended its Complaint to add that entity as a second Respondent.
Notwithstanding the Panel’s conclusion that the Complaint was proper against the identity shield service alone, “Kamon Corp, coco march” is apparently responsible for, and the beneficial holder of, the registration at issue. Accordingly, for purposes of this decision, the Panel treats only “Kamon Corp, coco march” as the Respondent.
B. Substantive Discussion
In order to prevail, Complainant must prove, as to the disputed domain name, that:
(i) It is identical or confusingly similar to a mark in which Complainant has rights.
(ii) Respondent has no rights or legitimate interests in respect to it.
(iii) It has been registered and is being used in bad faith.
Policy, paragraph 4(a). The Policy sets out examples of circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent’s bad faith registration and use, see Policy, paragraph 4(b).
Although Respondent has not answered the Complaint, a default does not automatically result in a finding for Complainant. Complainant continues to have the burden of establishing the required elements. The Panel may, however, draw such inferences from Respondent’s default as it considers appropriate. See Rules, paragraph 14(b).
A. Identical or Confusingly Similar
Complainant has established its rights in the mark KAMAN by virtue of the evidence of its United States federal trademark registration.
Respondent’s domain name is not identical to Complainant’s mark. The Panel is of the view that, as a general matter, a domain name is likely to be confusingly similar to a mark if it incorporates the mark or a variation of the mark. Here, the inclusion of the generic term “online” after “kaman” does not effectively differentiate or distinguish the domain name from Complainant’s mark, which remains the dominant portion of the domain name (the presence or absence of spaces and the addition of the generic top-level domain “.com” is not relevant for purposes of this comparison).
The Panel finds that the domain name is confusingly similar to a mark in which Complainant has rights.
B. Rights or Legitimate Interests
The Panel, consistent with the consensus view, finds that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing that a respondent lacks rights or legitimate interests. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (WIPO Overview 2.0), Question 2.1 (once complainant makes a prima facie case, the burden of showing rights or legitimate interests in the domain name shifts to respondent).
Paragraph 4(c) of the Policy sets out the following examples:
(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.
The Panel concludes that Complainant has made a prima facie showing that none of the three examples set forth in paragraph 4(c) of the Policy are applicable here.
It does not appear that Respondent was making a bona fide use of the domain name before notice of the dispute. As noted above, the disputed domain name is confusingly similar to Complainant’s mark, which has been used for many years. Further, Complainant has provided copies of email messages that suggest that Respondent is using the domain name to deceive others into believing that Respondent’s communications are from Complainant – not a bona fide use.
The Complaint asserts that Respondent is not commonly known by the domain name, but provides no evidence of trademark searches or other investigations2 even though the WhoIs information identifies Respondent as “Kaman Corp, coco march.” Despite the lack of such evidence, the Panel concludes that the other evidence does establish that Respondent is not known by the domain name. That evidence includes:
Respondent’s use of the domain name to suggest that its email messages originated from Complainant.
Finally, there is no evidence that Respondent is making a fair or noncommercial use of the domain name.
The Panel finds that Complainant has satisfied paragraph 4(b)(ii) of the Policy.
C. Registered and Used in Bad Faith
Complainant must establish that the domain name was registered and is being used in bad faith. The Policy itself sets out four sets of circumstances, evidence of which may establish bad faith, (see Policy, paragraph 4(b)(i)-(iv)):
(1) Registering the domain name primarily to sell it for more than documented out-of-pocket costs (see Policy, paragraph 4(b)(i)).
(2) Registering the domain name to prevent the owner of the trademark from reflecting the mark in a domain name, where there is a pattern of such conduct (see Policy, paragraph 4(b)(ii)).
(3) Registering the domain name primarily to disrupt the business of a competitor (see Policy, paragraph 4(b)(iii)).
(4) Using the domain name to intentionally attempt to attract, for commercial gain, Internet users to [respondent’s] web site or other on-line location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] web site or location or a product or service on [the respondent’s] web site or location, (see Policy, paragraph 4(b)(iv)).
Complainant’s rights in its mark predate registration of the disputed domain name. The email communications submitted by Complainant establish that the sender had actual knowledge of Complainant and its name and trademark and intended for the recipients to believe that the communications were from Complainant. The Panel finds Complainant’s assertion that these communications were part of a scheme to defraud consistent with their content and highly plausible.
The Panel finds that Complainant has established that Respondent has registered and is using the disputed domain name in bad faith.
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, <kamanonline.com>, be transferred to Complainant.
Debra J. Stanek
Date: November 3, 2011
1 See also, Rules, paragraph 4, which is entitled “Notification” of Complaint and does not refer to “initiation.” Instead, paragraph 4(c) refers to the “commencement” of the proceedings.
2 These might have included results of searches of: (a) federal and state trademark databases for “KAMAN” marks owned by Respondent, (b) telephone listings for Ham Lake, Minnesota and the surrounding area, or (c) databases of Minnesota corporations.