Complainants are KBR Inc. and Kellogg Brown & Root LLC (collectively, the “Complainants”) of Houston, Texas, United States of America, represented by Edmonds & Nolte, P.C., United States of America.
Respondent is JBR Enterprises, Inc. of Mt. Airy, Maryland, United States of America. 2. The Domain Name and Registrar
The disputed Domain Name, (the “Domain Name”), is registered with Network Solutions, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 7, 2011. On January 10, 2011, the Center transmitted by email to Network Solutions, LLC, a request for registrar verification in connection with the Domain Name. On January 10, 2011, Network Solutions, LLC, transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainants on January 11, 2011, providing the registrant and contact information disclosed by the Registrar, and inviting Complainants to submit an amendment to the Complaint. Complainants filed an amended Complaint on January 15, 2011.
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 Respondent of the Complaint, and the proceedings commenced on January 19, 2011. In accordance with the Rules, paragraph 5(a), the due date for a Response was February 8, 2011. Respondent did not submit any Response. Accordingly, the Center notified Respondent of its default on February 9, 2011.
The Center appointed Maxim H. Waldbaum as the sole panelist in this matter on February 23, 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
The Domain Name, , was registered on May 5, 2009.
The website identified as “www.” contains no substance other than the statement:
“KBR Acquisitions
KBR Acquisitions was recently launched to become a leading global company for acquisitions of construction or other companies supporting the energy, hydrocarbon, government services and civil infrastructure sectors of the economy. Interested sellers of companies matching our profile, or exclusive brokers of same, may contact Claudia Mason at [ ]@.”
Complainant Kellogg, Brown & Root LLC is a wholly owned subsidiary of Complainant KBR, Inc. Complainant is in the business of procurement services.
The trademark KBR the “mark”), owned by Complainant Kellogg, Brown & Root LLC, and in actual use by Complainant since January 1, 1999, was registered with the United States Patent and Trademark Office on September 20, 2005, with registration number 2,997,435. 5. Parties’ Contentions A. Complainants
Complainants contend the following:
Complainants have exclusive rights, title, and interests in the registered mark, KBR.
Complainants’ registered trademark KBR covers most, if not all, of the activities described on the website, “www.”. The Domain Name, , is identical or confusingly similar to the trademark in which Complainants have rights within the meaning of paragraph 4(a)(i) of the Policy.
There is no evidence of Respondent’s use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods or services.
Respondent has not acquired any relevant trademark or service mark rights, licenses, or authorizations to use the Domain Name.
Respondent has not made any legitimate noncommercial or fair use of the Domain Name.
Respondent has intentionally attempted to attract Internet users to the website for commercial gain. B. Respondent
Respondent did not reply to Complainants’ contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, Complainants must prove that:
(i) The Domain Names are identical or confusingly similar to a trademark or service mark in which Complainants have rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
“In considering those three matters a Panel, by virtue of Rule 14(b) of the Rules, is entitled to draw such inferences as it considers appropriate from the failure by a Respondent to respond to a Complaint.” Debevoise & Plimpton LLP v. Marketing Total S.A.,WIPO Case No. D2007-0451. A. Identical or Confusingly Similar
To satisfy this element, Complainants must establish that they have rights to a trademark or service mark and that the Domain Name is identical or confusingly similar to such mark. Policy, paragraph 4(a)(i). As established by prior UDRP decisions, the applicable test is “confined to a consideration of the disputed domain name and the trademark”. The Boucher Group, Inc. v. Nevis Domains LLC,WIPO Case No. D2006-1463 (citing America Online, Inc. v. Anson Chan,WIPO Case No. D2001-0004).
Complainants have shown that they own the trademark KBR in connection with procurement services. The Domain Name incorporates the KBR mark in its entirety. “[T]he fact that a domain name wholly incorporates a complainant[s’] registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy despite the addition of other words to such marks.” Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903.
Respondent’s use of the word “acquisitions” in conjunction with its use of the KBR mark does not detract from the similarity between its Domain Name and Complainants’ mark. EPSON Europe BV v. M31 Internet Palma, S.L.,WIPO Case No. D2005-0604. KBR is a world-renowned company; the letters “KBR” form the dominant element of the Domain Name. The word “acquisitions” is not dominant; it is descriptive and places the focus on the “KBR” element of the Domain Name.
Respondent has not rebutted Complainants’ contention that the Domain Name is identical or confusingly similar to Complainants’ mark.
The Panel finds that Complainants have rights to the KBR mark and that the Domain Name is identical or confusingly similar to Complainants’ mark. Complainants have thus satisfied their burden of proof under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Complainants have made a prima facie case that Respondent has no rights or legitimate interests in the Domain Name.
According to the Policy, a respondent may demonstrate that it has rights or legitimate interests in the disputed domain name by showing:
(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.
Policy, paragraph 4(c).
Complainants have shown that the Domain Name does not offer as such to sell any goods or services; it merely invites Internet users to contact a specified e-mail address. Thus, the Panel finds that Respondent has neither used nor prepared to use the Domain Name in connection with a bona fide offering of goods or services.
Further, there is no evidence tending to show that Respondent, “JBR Enterprises, Inc.”, has been commonly known by “KBR” or any variation of that name.
Finally, it does not appear that Respondent was “making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers”. In fact, as discussed infra, Respondent’s purpose in registering and using the Domain Name appears to be to mislead consumers for commercial gain.
Respondent has offered no evidence or argument to counter the Complainants’ case, and the Panel finds that the Complainants have satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Policy outlines several circumstances which serve to indicate that a domain name was registered and used in bad faith, including that the Respondent “intentionally attempted to attract, for commercial gain, Internet users to” the Respondent’s Domain Name, “by creating a likelihood of confusion with the Complainant[s’] mark as to the source, sponsorship, affiliation, or endorsement” of Respondent’s Domain Name “or of a product or service on the respondent’s website.” Policy, paragraph 4(b)(iv).
Respondent has chosen to register and use a domain name that fully incorporates Complainants’ trademark. The website serves no discernible purpose other than to mislead Internet users by exploiting Complainants’ notoriety and creating a likelihood of confusion with Complainants and their mark.
A previous panel’s resolution of this issue is applicable here, mutatis mutandis:
The similarities between “Guerlain” and the Domain Name [] cannot result from a mere coincidence. While Respondent could have chosen a million of other names for his company and his online store, he precisely chose a domain name incorporating Complainant’s name so as to be identical or at least extremely confusingly similar to Complainant’s trademark. By knowingly choosing a domain name consisting of Complainant’s trademark preceded by the verb “to buy”, Respondent intentionally created a situation which is at odds with the legal rights and obligations of the parties.
Guerlain S.A. v. HI Investments,WIPO Case No. D2000-0494. The Guerlain S.A. analysis is also applicable to this case, mutatis mutandis:
On balance and noting that Respondent has made no attempt to provide any explanation the Panel finds Respondent registered and used the Domain Name, , in bad faith pursuant to the Policy, paragraph 4(b)(iv), because the name is confusingly similar to Complainants’ KBR trademark. By knowingly choosing a domain name consisting of Complainants’ trademark, succeeded by the descriptor “acquisitions”, Respondent intentionally attempted to divert potential customers of Complainants to Respondent’s website for commercial gain.
Respondent has not sought to counter Complainants’ case. On this record, the Panel is satisfied that Complainants have proved the bad faith requirement of paragraph 4(a)(iii), (b)(iv)) of the Policy both in relation to registration and in relation to use. 7. Decision
For all the foregoing reasons, in accordance with paragraph 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, , be transferred to Complainants.
Maxim H. Waldbaum
Sole Panelist
Dated: March 3, 2011
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