Complainant is Oceaneering International Inc. of Houston, Texas, United States of America represented by Duane Morris LLP, United States of America.
Respondent is Sumer Kolcak of San Mateo, California, United States of America. 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 20, 2010. On October 20, 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 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 Respondent of the Complaint, and the proceedings commenced on October 28, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 17, 2010. The Center received from Respondent email communications on October 28, 2010, October 30, 2010, and November 1, 2010. However, Respondent did not submit a formal Response.
The Center appointed Sandra J. Franklin as the sole panelist in this matter on November 29, 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
Complainant, Oceaneering International, Inc., is a global provider of engineering services, particularly in the offshore oil and gas industries. Complainant has been using the mark OCEANEERING since at least 1970 and holds various trademark registrations in the United States and elsewhere.
Respondent registered the domain name on August 23, 2010. At the time the Complaint was filed, Respondent appeared to use the disputed domain name to state that it was for sale. 5. Parties’ Contentions A. Complainant
Complainant makes the following assertions:
1. The domain name is confusingly similar to Complainant’s OCEANEERING mark.
2. Respondent does not have any rights or legitimate interests in the domain name.
3. Respondent registered and used the domain name in bad faith. B. Respondent
No formal substantive Response was submitted, although Respondent sent several email communications to the Center in relation to this matter. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a formal response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., NAF Claim No, 95095 (July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson,WIPO Case No. D2000-0009 (February 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that Complainant has established rights in its OCEANEERING mark through its trademark registration with the USPTO, pursuant to Policy, paragraph 4(a)(i). See Miller Brewing Company v. The Miller Family, NAF Claim No. 104177 (Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations).
Respondent’s domain name is confusingly similar to Complainant’s OCEANEERING mark. The only difference between Complainant’s mark and the disputed domain name is the addition of the country top-level domain (“ccTLD”) “.co”. The Panel finds that the addition of a ccTLD suffix fails to distinguish the disputed domain name from Complainant’s mark. See Jerry Damson, Inc. v. Texas International Property Associates., NAF Claim No. 916991 (April 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”) and Zynga Game Network, Inc. v. Emil Boc,WIPO Case No. D2009-1535 (January 19, 2010) (“addition of a ccTLD suffix is irrelevant when determining whether a disputed domain name is confusingly similar to the Complainant's trademark”). The Panel concludes that Respondent’s domain name is confusingly similar to Complainant’s OCEANEERING mark pursuant to Policy, paragraph 4(a)(i).
The Panel finds that Policy, paragraph 4(a)(i) has been satisfied. B. Rights or Legitimate Interests
Complainant contends that Respondent lacks rights and legitimate interests in the domain name. Once Complainant establishes a prima facie case, the burden shifts to Respondent to demonstrate that it does possess rights and legitimate interests in the disputed domain name pursuant to Policy, paragraph 4(a)(ii). The Panel finds that Complainant has sufficiently presented a prima facie case in these proceedings. As Respondent failed to formally respond to the allegations against it, the Panel may assume that Complainant’s allegations are true and that Respondent lacks any rights and legitimate interests in the disputed domain name. See DESOTEC N.V. v. JACOBI CARBONS AB,WIPO Case No. D2000-1398, (December 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Broadcom Corporation. v. Ibecom PLC, NAF Claim No. 361190 (December 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). The Panel, however, has also considered the evidence in record in light of the Policy, paragraph 4(c) factors in order to determine whether Respondent has any rights and legitimate interests in the disputed domain name.
Complainant asserts that it has not authorized Respondent to use Complainant’s OCEANEERING mark. The WhoIs information does not indicate that Respondent is commonly known by the disputed domain name. With no evidence in the record to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy, paragraph 4(c)(ii). See CareerBuilder, LLC v. Stephen Baker,WIPO Case No. D2005-0251 (May 6, 2005); see also Coppertown Drive-Thru Systems, LLC v. R. Snowden, NAF Claim No. 715089 (July 17, 2006) (concluding that the respondent was not commonly known by the domain name where there was no evidence in the record, including the WhoIs information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant provides evidence showing that Respondent offered to sell the disputed domain name to Complainant for USD 337,000, certainly greater than the out-of-pocket costs associated with the registration of the domain name. The Panel finds that Respondent’s offer to sell the disputed domain name for an amount in excess of Respondent’s out-of-pocket costs is further evidence that Respondent lacks rights or legitimate interests in the disputed domain name. See Elenie Reese v. Eddie Morgan, NAF Claim No. 917029 (April 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Williams-Sonoma, Inc. v. Kurt Fees c/o K Fees, NAF Claim No, 937704 (April 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy, paragraph 4(a)(ii)).
The Panel finds that Policy, paragraph 4(a)(ii) has been satisfied. C. Registered and Used in Bad Faith
There is no allegation of any use of the domain name other than to post that it is for sale. Complainant provided correspondence from Respondent wherein he names an exorbitant price for the domain name and uses abusive and incoherent language. The Panel finds that Respondent’s offer to sell the disputed domain name to Complainant for USD 337,000 is evidence of Respondent’s bad faith registration and use pursuant to Policy, paragraph 4(b)(iii). See Bank of America Corporation v. Northwest Free Community Access, NAF Claim No, 180704 (Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also America Online, Inc. vs. Avrasya Yayincilik Danismanlik Ltd. , NAF Claim No. 93679 (March 16, 2000) (finding bad faith where the respondent offered domain names for sale).
The Panel finds that Policy, paragraph 4(a)(iii) has been satisfied. 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.
Sandra J. Franklin
Sole Panelist
Dated: December 6, 2010
Full & Egal Universal Law Academy