Complainant is Total Temperature Instrumentation, Inc. d/b/a lnstrumart of South Burlington, Vermont, United States of America (“United States”), represented by Gravel & Shea PC, United States.
Respondent is Laura Dunn, Virtual Office of Kansas, Missouri, United States. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Wild West Domains, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 26, 2018. On February 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 27, 2018, 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. On March 9, 2018, the Center sent an email communication to Complainant providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March 12, 2018.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 13, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 2, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 4, 2018.
The Center appointed Robert A. Badgley as the sole panelist in this matter on April 13, 2018. 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 sells laboratory instruments and holds a registered trademark with the United States Patent and Trademark Office (“USPTO”), registration number 3,646,816, for the mark INSTRUMART. This mark was registered on June 30, 2009. Since November 2005, Complainant has used the mark INSTRUMART in commerce to identify and distinguish its services, described in the USPTO registration as “distributorship services in the field of process control instruments, fluid meters & counting devices, and instruments to measure electricity.”
Complainant owns the domain name and uses that domain name to host a website in connection with its business.
The Domain Name was registered on February 18, 2018. The Domain Name resolves to a landing page which invites the visitor to “Do more with your domain.”
On February 19, 2018, a third party company (“MTU”) received an email from a person claiming to be Chris Wilkinson, who used the email address “chris.wilkinson@”. The email stated: “Quotes are needed for the below Equipment’s [sic] for our acquisition consideration.” After this sentence, a specific video recorder and a specific hard disk drive were indicated. The email closed with Chris Wilkinson’s alleged physical address, which is Complainant’s physical address.
The MTU recipient of the email brought it to Complainant’s attention, suspecting it to be fraudulent. Complainant investigated and confirmed that it employed no one named Chris Wilkinson. This Complaint followed. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has established the three elements required under the Policy for a transfer of the Domain Name. 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
The Panel concludes that Complainant has rights in the mark INSTRUMART through registration and use. The Panel finds that the Domain Name is confusingly similar to the mark. The Domain Name incorporates the mark in its entirety and adds the letter “s.” This small difference does not overcome 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.
The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent has not come forward to articulate or defend its motives in registering the Domain Name. The only evidence of record is that Respondent registered the Domain Name and someone with control over the Domain Name has caused an email using the Domain Name (and misleadingly listing Complainant’s physical address as that of the email sender) to be sent to a third party, who suspected fraud.
Complainant has established Policy paragraph 4(a)(ii). 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 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.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. The record here is not ample, but the few facts available all point to bad faith. First, Respondent registered the Domain Name, which is nearly identical to the INSTRUMART mark. Second, one day after the Domain Name was registered, someone sent an evidently illegitimate email to a third party, using the Domain Name for an email address. Third, that email apparently sought to initiate a commercial transaction, and falsely claimed an association between Complainant and the email sender (by indicating Complainant’s physical address). The email’s recipient perceived the email to be fraudulent in nature. Given the lack of any explanation from Respondent, or other evidence or even inference, that the Domain Name was registered for some legitimate purpose, the Panel is left with no reasonable option but to conclude from the undisputed record that the Domain Name was registered and used for fraudulent commercial purposes.
Complainant has established Policy paragraph 4(a)(iii). 7. Decision
For 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 Complainant.
Robert A. Badgley
Sole Panelist
Date: April 14, 2018
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