WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Fluor Corporation v. Belize Domain Whois Service Lt Case No. D2010-0376 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 Belize Domain Whois Service Lt of Belize, West Indies (WI). 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Intercosmos Media Group d/b/a directNIC.com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2010. On March 12, 2010, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the Disputed Domain Name. On March 12, 2010, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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 March 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 7, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 9, 2010.
The Center appointed Maxim H. Waldbaum as the sole panelist in this matter on April 23, 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 following uncontested facts are summarized from the Complaint.
The Complainant has used the name Fluor since it was founded as Fluor Construction Company in 1912. The Complainant registered the mark FLUOR (the “Mark”) in 1954. Fluor Corporation is now the largest United States of America based publicly traded engineering, procurement, construction, maintenance services, and project management company. Since January 15, 2001, the Complainant also is the sole owner and the current published owner of FLUOR at the Office for Harmonization in the Internal Market. The Complainant is a Fortune 150 company, and is ranked number one in FORTUNE magazine's “Engineering Construction” category of United States of America's largest corporations.
The Disputed Domain Name was registered on August 24, 2000. 5. Parties' Contentions A. The Complainant
The following allegations are summarized from the Complaint.
The Disputed Domain Name is confusingly similar to the Complainant's Mark, in that the only difference between the two names is the swapping of the letter “u” with the letter “o”. The Complainant has been using the Mark since 1921.
The Respondent has no rights or legitimate interests in the Disputed Domain Name . There is no evidence that the Respondent owns registrations for any trademarks containing the terms “Flour Engineering”. The term “Flour Engineering” does not serve as the Respondent's trade name or business identity, and the Respondent does not provide any goods or services that are identified or described by these or similar terms. The Respondent is neither a licensee nor an authorized representative/ partner of Fluor Corporation, to register or sell any domain names incorporating the Complainant's Mark.
The Respondent is not using the Disputed Domain Name in connection with any bona fide offering of goods or services. The Disputed Domain Name resolves to a parked website with links to the Complainant's competitors, inactive sites, or sites created by the Respondent.
Finally, the Respondent is using the Disputed Domain Name in bad faith. The Respondent has shown bad faith by registering the domain name after 1954, the date the Complainant registered its trademark. The Respondent failed to show proof of legitimacy upon receipt of a “Cease and Desist” letter sent by the Complainant on November 19, 2009 and December 15, 2009. The Respondent's bad faith is further shown by the use of the website as a “click through” website using the Complainant's Mark in order to generate revenue. B. The Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the the Respondent is identical or confusingly similar to a trademark or service in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect to the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
This is a clear case of “typo squatting” because the Respondent has merely switched the letter “u” with the letter “o” in the Complainant's Mark. Prior panels have found that when a respondent's domain name is a common mistyping of the complainant's trademark the domain name in question is confusingly similar. See Wachovia Corporation v. American Consumers First, WIPO Case No. D2004-0150; Red Bull GmbH v. Grey Design, WIPO Case No. D2001- 1035; Playboy Enterprises International Inc. v. SAND WebNames – For Sale, WIPO Case No. D2001-0094; Telstra Corp. Ltd. v. Warren Bolton Consulting Pty. Ltd., WIPO Case No. D2000-1293.
UDRP panels have previously held that misspellings or typographical variations of famous marks are confusingly similar. See Citigroup Inc. v. Belize Domain WHOIS Service Lt., FA 080201153868 (Nat. Arb. Forum Apr. 10, 2008), Sunglass Hut Corp. v. AAANET, Inc., FA 94370 (Nat. Arb. Forum May 11, 2000).
Finally, prior panels have held that the addition of an added generic term to the domain name does not alter the fact that the domain name is confusingly similar. In this case the added generic term “engineering” references the “goods and services” that the Complainant's trademarks are registered under. Therefore, the Disputed Domain Name is confusingly similar. Terex Corporation v. Texas International Property Associates – NA,WIPO Case No. D2008-0733; Nokia Corporation v. N a.k.a. IBCC, WIPO Case No. D2000-0102; Eauto L.L.C. v. Net Me Up, WIPO Case No. D2000-0104. It is also well established that the addition of a gTLD such as .com to the end of the Mark does not significantly diminish the confusing similarity.
Therefore, the Panel finds that the paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy establishes the standards under which a respondent can establish rights or legitimate interests to and in a domain name. A respondent may prove any of the following to establish his rights or legitimate interests in a disputed domain name:
(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 Respondent has failed to submit any evidence that it is commonly known by the Disputed Domain Name, or that it has used the Disputed Domain Name in connection with a bona fide offering of goods and services. Furthermore, there is no evidence in the record to support a claim that the Respondent is making a legitimate noncommercial or fair use of the Dispute Domain Name.
The Complainant contends that the Respondent has no rights or legitimate interest in the Disputed Domain Name, and is not associated or affiliated with the Complainant in any way. By default there is no evidence in the record that the Respondent has any legitimate interest in the Disputed Domain Name, or is associated or affiliated with the Complainant.
The Respondent is clearly attempting to use a type of the Complainant's Mark in order to generate revenue for itself. The Disputed Domain Name resolves to a “click though” website offering services similar to those of the Complainant. No evidence has been presented that the Respondent is operating a real company “Flour Engineering”. Therefore, the Respondent is trying to benefit from the association with the Complainant's Mark. See The Ritz Hotel, Limited v. Damir Kruzicevic,WIPO Case No. D2005-1137.
Based on the foregoing, the Panel finds that the Complainant has satisfied its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Respondent registered and used the Disputed Domain Name in bad faith. Bad faith can be established by proving that: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.” Paragraph 4(b)(iv).
The Respondent registered the Disputed Domain Name in 2000, almost fifty years after the Complainant registered its Mark. Based on the well known name of the Complainant and its history, it would be impossible for the Respondent to claim it is unfamiliar with the existence of the Complainant and its Mark.
Also, the Complainant sent the Respondent a “Cease and Desist” letter November 19, 2009 and December 15, 2009, and the Respondent failed to show proof of legitimacy.
The Respondent's bad faith is further shown through its use of the Complainant's Mark in order to generate revenue through its “click through” website. The Respondent's site provides links to services similar in nature to the goods and services provided by the Complainant, and attempts to take advantage of the Complainant's Mark in order to achieve these wrongful gains by using a “click through” website. AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.l., v. Caribbean Online International Ltd. / BelgiumDomains,WIPO Case No. D2008-1470.
Further, the Respondent's registration of a typo of a well-known mark is also strong evidence of bad faith. The Respondent's history of involvement in prior UDRP decisions where the domain name has been transferred is also evidence of bad faith. Indiana SA v. Believe Domain Whois Service Lt,WIPO Case No. D2009-0847.
Therefore, the Panel finds that the Respondent registered and used the Disputed Domain Name in bad faith, and the Complainant has satisfied its burden under paragraph 4(a)(iii) of the Policy. 7. Decision
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 be transferred to the Complainant.
Maxim H. Waldbaum
Sole Panelist
Dated: May 7, 2010
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