The Complainant is R, Inc. of Houston, Texas, United States of America, represented by Morrison & Foerster, LLP, United States of America.
The Respondent is Kevin Forbes, Oil and Gas People ltd of Aberdeenshire, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The Disputed Domain Name is registered with Tucows, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on October 18, 2010. On October 19, 2010, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the Disputed Domain Name. On the same date, the Registrar 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 October 27, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 16, 2010. The Respondent sent email communications to the Center on October 19, 27 and 31, 2010 but did not submit any formal Response. On November 18, 2010, the Center informed the parties that no formal Response was received from the Respondent, and that it will proceed with the appointment of the administrative panel.
On November 22, 2010, the Center received two supplemental filings from the Complainant and one supplemental filing from the Respondent. The Center acknowledged receipt of these supplemental filings and notified the parties on November 24, 2010 that it would be for the Panel to decide on whether to admit these filings.
The Center appointed Alistair Payne as the sole panelist in this matter on December 3, 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 Complainant has since 1999 operated an employment consultancy for the oil and gas industry in a variety of countries worldwide under the mark and domain name RIGZONE.COM. It has owned a United States registered trade mark for RIGZONE.COM since February 4, 2008.
The Respondent is also an employment consultancy for the oil and gas industry. The Disputed Domain Name was registered in July 2010. 5. Parties’ Contentions A. Complainant
The Complainant submits that the Disputed Domain Name is identical or confusingly similar to its RIGZONE.COM registered trademark and differs overall only by the omission of the letter “m” from the domain root “.co”.
As far as rights or legitimate interests are concerned the Complainant says that the Respondent is not known by and does not provide goods or services under the Disputed Domain Name and merely uses it to redirect Internet users to the Respondent’s own oil industry recruitment website under the Respondent’s name “Oil and Gas People”. The Complainant says that it has not authorised the Respondent’s use and is not affiliated to and has not sponsored the Respondent in any way. It says that the Respondent’s use of the Disputed Domain Name to resolve to a website advertising the Respondent’s competing business is not a good faith use and that the fact that after notification by the Complainant it changed the site to an informational site with at least one competing advertisement for Oil and Gas People’s business is also not consistent with a motivation in good faith. The Complainant submits that the Respondent’s use is not a legitimate noncommercial fair use of the Disputed Domain Name as the Respondent is profiting from such use.
The Complainant says that this is effectively a case of typosquatting in which the Disputed Domain Name differs from the Complainant’s mark by one letter and which the Respondent uses to re-direct Internet users to its website by creating a likelihood of confusion with the Complainant’s trade mark. It submits in this regard that the Respondent’s conduct fulfills the requirements of paragraph 4(b)(iv) of the Policy. In addition the Complainant says that the Respondent purposefully registered the Disputed Domain Name primarily for the purpose of disrupting the Complainant’s business under paragraph 4(b)(iii) of the Policy.
The Complainant also submits that the Respondent’s two efforts at selling the Disputed Domain Name to it for far in excess of the out of pocket costs attributable to the Disputed Domain Name are also exemplary of the Respondent’s bad faith. The Respondent first offered the Disputed Domain name to the Complainant for GBP 84,000 being its perceived advertising value and after some correspondence between the parties rejected the Complainant’s counter-offer of USD 500 and proposed a sale price of USD 5000. B. Respondent
The Respondent did not submit a formal Response. 6. Discussion and Findings
The Panel notes that the Respondent did not file a formal Response but has made a supplemental filing as noted above. The Panel accepts the Respondent’s and both the Complainant’s supplemental filings. A. Identical or Confusingly Similar
The key element of the Disputed Domain Name is “rigzone” which is identical to the distinctive “rigzone” element of the Complainant’s RIGZONE.COM mark which has been registered in the United States of America since 2008 under registration number 3545667. On overall comparison the Disputed Domain Name, even including the “.co” domain root differs from the Complainant’s trade mark by only one letter and is at the least confusingly similar to it.
Accordingly, the Complaint succeeds in relation to the first element of the Policy. B. Rights or Legitimate Interests
There is no evidence before the Panel that the Respondent is known by the Disputed Domain Name, that it provides bona fide goods or services under that name, or that it has been authorised by the Complainant to use it or that there is any affiliation between the parties. The Respondent first used the Disputed Domain Name to defer Internet users to its own website and it was only after receiving notice of the Complainant’s interest that it transformed the site into an informational site featuring an advertisement for its own website. The Panel considers that the Respondent’s conduct in attempting to turn its site into an informational website does not comprise bona fide noncommercial use in the circumstances of this case, in particular, in view of the parties being competitors, the timing of the transformation, its use of an advertisement for its own business on the website and the other indicia of bad faith as set out below.
Overall the Panel finds that the Complainant has made out the prima facie case that is required of it under this part of the Policy and there is no evidence before it sufficient to rebut that case and as a result the Complaint succeeds under the second element of the Policy. C. Registered and Used in Bad Faith
As noted above the Respondent is in the same business and competes with the Complainant. It registered the Disputed Domain Name around ten years after the Complainant started using its quite distinctive RIGZONE.COM trade mark and differs overall from the Disputed Domain Name by only one letter. The overwhelming inference in the Panel’s view based on these circumstances is that it registered the Disputed Domain Name intentionally in order to re-direct Internet users to its website by creating a likelihood of confusion with the Complainant’s trade mark in terms of paragraph 4 (b)(iv) of the Policy, which is evidence of both registration and use in bad faith. This inference is only reinforced by the Respondent’s attempt to provide an informational website at the Disputed Domain Name following the Complainant’s cease and desist letter and the placement of an advertisement for the Respondent’s competing business.
In addition, after receiving the Complainant’s cease and desist letter, the Respondent made two separate attempts, firstly for GBP 84000 Sterling and subsequently for USD 5000, to sell the Disputed Domain Name to the Respondent for amounts very considerably in excess of its documented out of pocket costs which is strongly indicative of bad faith (Volvo Trademark Holding AB v. Unasi, Inc. WIPO Case No. D2005-0556).
As a result the Panel finds that the Respondent registered and used the Disputed Domain name in bad faith and the Complaint succeeds under the third element 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.
Alistair Payne
Sole Panelist
Dated: December 17, 2010
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