Complainant is ATMOS Energy Corporation of Dallas, Texas, United States of America ("United States"), represented by Howison & Arnott, LLP, United States.
Respondent is Registration Private, Domains By Proxy, LLC, DomainsByP of Scottsdale, Arizona, United States / Kent Hill of Red Oak, Texas, United States. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 23, 2016. On February 23, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar 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 Complainant on February 24, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on February 29, 2016.
The Center verified that the Complaint together with the amendment to 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 and 4, the Center formally notified Respondent of the Complaint, and the proceeding commenced on March 4, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 24, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on March 30, 2016.
The Center appointed Robert A. Badgley as the sole panelist in this matter on April 7, 2016. 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, based in Texas, is a major distributor of natural gas in the United States. According to the Complaint, "Complainant attributes its success to a century of great employees." As such, "attracting high quality applicants and supporting its valuable existing employees" are "important business functions for Complainant."
Complainant holds a series of registered trademarks with the United States Patent and Trademark Office for the marks ATMOS and ATMOS ENERGY. The ATMOS family of marks covers a variety of services including "public utility services in the nature of natural gas distribution and natural gas transportation to commercial, industrial, irrigation, municipal and utility consumers" and "marketing services for others, namely, promoting the use of natural gas over electricity in new residential developments."
The Domain Name was registered on September 10, 2014. The Domain Name resolves to a website featuring a decidedly apocalyptic illustration, purportedly of the underworld, and the following text: "So you are working for [J. S.]????? Then welcome to HELL!!!"
Complainant alleges, and it is undisputed, that there is "no evidence that Respondent has ever used the [Domain Name] in commerce." It is also undisputed that Complainant has never authorized Respondent to use the ATMOS mark in commerce or register a domain name including the ATMOS mark. 5. Parties' Contentions A. Complainant
Complainant asserts that it has satisfied the three elements required under a Policy for a transfer of the Domain Name. According to Complainant, Respondent is using the Domain Name for a website "which tarnishes the Atmos Marks by making malicious statements about individuals, but does not identify the targeted individuals as being related to Complainant in any way." Complainant adds: "Since these individuals are employees of Complainant (although not identified as such on the website using the [Domain Name]) there cannot be any legitimate purpose for the [Domain Name] other than to disrupt the business of Complainant."
Further, Complainant contends that "Respondent's use of the terms 'Atmos' and 'tax director' in the [Domain Name] further serves to mislead potential applicants seeking employment by Complainant to view the associated website, which does not actually provide any information about Complainant or employment by Complainant." This use, Complainant concludes, tarnishes Complainant's "reputation as a great employer" and "thereby disrupts the hiring and supporting of Complainant's employees, which are important business functions."
Finally, Complainant asserts that Respondent's chief purpose is "to harass individual persons and to disrupt the Complainant's business, by publishing malicious, damaging, untruthful and unsupported information aimed at tarnishing the Atmos Marks and destroying their goodwill and reputation among their customers and amongst the general public who will surely access the website and having done so be likely to believe the assertions made by Respondent." B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has 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. A. Identical or Confusingly Similar
Complainant clearly holds rights in its registered trademark ATMOS. The Domain Name incorporates this distinctive mark in its entirety and adds the descriptive words "tax director." In the Panel's view, the dominant element of the Domain Name is the ATMOS mark, and, given the relatively low hurdle to clear with respect to the Policy's "confusing similarity" element, the additional descriptive words do not diminish the confusing similarity between the mark and the Domain Name.
Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] 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.
In view of the Panel's holding under the "bad faith" head below, the Panel declines to decide this element. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, "in particular but without limitation," are evidence of the registration and use of the Domain Name in "bad faith":
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) that Respondent 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website 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 website or location or of a product or service on Respondent's website or location.
On this record, the Panel cannot conclude that the Domain Name was registered and is being used by Respondent in bad faith. It is more likely than not that Respondent was aware of Complainant and its ATMOS mark when registering the Domain Name. This may be safely inferred from the facts that the Domain Name includes the distinctive ATMOS mark, and Respondent's puerile website attacks an individual employed by Complainant.
Having said that, there is no evidence in the record of bad faith use of the Domain Name, at least as the concept of bad faith is delineated under the Policy. First, there is no basis for finding bad faith under paragraph 4(b)(i), since there is no evidence that Respondent has sought to sell or rent the Domain Name for profit.
Second, there is no evidence that Respondent has engaged in a pattern of preclusive registrations within the meaning of paragraph 4(a)(ii).
Third, there is no basis for finding bad faith under paragraph 4(b)(iii), since there is no evidence that Complainant and Respondent are competitors.
As respects bad faith under Policy paragraph 4(b)(iv), the Panel cannot conclude on this record that Respondent "has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other online location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location." Complainant concedes that Respondent has not used the Domain Name in commerce.
Complainant has cited no authority for the proposition that its ability to attract and retain good employees is a protected interest under the Policy, such that a Domain Name resolving to a childish website which insults a company's employee amounts to bad faith registration and use under the Policy. The Policy protects trademark rights, not all aspects of a business, and the Policy's chief area of concern is to address clear cases of cybersquatting. Not every form of mischief associated with a domain name falls within the purview of the Policy, and unwelcome and even sophomoric speech at a website does not necessarily support a bad faith finding under the Policy.
Complainant has not established Policy, paragraph 4(a)(iii) and therefore the Complaint fails. 7. Decision
For the foregoing reasons, the Complaint is denied.
Robert A. Badgley
Sole Panelist
Date: April 11, 2016
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