In another horrible decision, The domain name EquipmentTrader.com was just lost in UDRP, United States trademark registration for the words HEAVY EQUIPMENT TRADER. Registered January 19, 1988; and filed on June 11, 1987
The domain was registered on April 15, 1998 and is due to expire on April 14, 2017.
The one member panel of Peter L. Michaelson, found that the domain owner who was forwarding the domain name to its site at UsedIron.com “is not a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy.”
The panelist noted that the trademark holder after the date the domain was registered obtained “United States trademark registrations that include the words EQUIPMENT TRADER however, none of the rights granted on these registrations predates the April 15, 1998 registration date of the disputed domain name and therefore called such trademark registrations “irrelevant and said they would be be ignored hereinafter”.
Here are the highlights:
“The Respondent, operates under the name Linxworks Solutions, LLC, uses the disputed domain name to divert Internet users to its own website at usediron.com through which the Respondent offers goods and services that are essentially identical to those offered by the Complainant through both its website and its “Heavy Equipment Trader” magazine.
Through an e-mail dated April 20, 2016, the Complainant wrote to the Respondent concerning the disputed domain name. By its responding e-mail dated May 3, 2016, the Respondent stated it would need an additional week to consider the matter. Since then, the Complainant received no further communication from the Respondent.
he Panel finds that the disputed domain name is confusingly similar to the Complainant’s HEAVY EQUIPMENT TRADER mark.
From a simple comparison of the disputed domain name to the Complainant’s mark HEAVY EQUIPMENT TRADER, no doubt exists that the disputed domain name is confusingly similar to it.
The name consists of the mark from which the generic word “heavy” has been deleted to yield the term “equipmenttrader” to which the generic Top-Level Domain (“gTLD”) “.com” has been appended. The addition of the gTLD is irrelevant in this case in assessing confusing similarity or identity under paragraph 4(a)(i) of the Policy and thus ignored.
Based on the evidence of record here, the Panel finds that no basis exists which would appear to legitimize a claim of rights or legitimate interests by the Respondent to the disputed domain name under paragraph 4(c) of the Policy.
This Panel finds, based on the record before it, that the Respondent, when it registered the disputed domain name, was likely well aware of the Complainant, its HEAVY EQUIPMENT TRADER Mark and the Complainant’s exclusive rights in that mark, and the reputation of and the goodwill inherent in that mark.
Yet, in spite of that knowledge, the Respondent intentionally registered the disputed domain name and uses it to redirect Internet users to its own website through which the Respondent offers essentially the same goods and services as does the Complainant through its both its own site and its HEAVY EQUIPMENT TRADER magazine.
This use, which exploits confusion of Internet viewers to divert business to the Respondent and away from the Complainant to its financial detriment, is not a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy.
The record before the Panel is simply devoid of any evidence which proves that the Respondent actually acquired any recognition in the marketplace to become commonly known by the disputed domain name or a name similar to it. Given the exclusive trademark rights that reside in the Complainant and the reputation now inherent in its HEAVY EQUIPMENT TRADER mark both through registration and prior use, the Respondent could not legitimately acquire any public association between itself and the Complainant’s mark or even any mark similar thereto, at least for the goods and services provided by the Complainant under its mark.
Lastly, the Respondent’s use of the disputed domain name clearly does not constitute either a noncommercial or fair use under paragraph 4(c)(iii) of the Policy.
The Panel finds on balance that the Respondent’s actions, with respect to the disputed domain name, constitute bad faith registration and use.
The Panel infers, particularly from the lack of any Response, that it is likely that the Respondent was well aware of the Complainant, its reputation and its HEAVY EQUIPMENT TRADER mark and the exclusive rights which the Complainant then had in that mark when the Respondent registered the disputed domain name. Yet, in spite of that knowledge and in the absence of any authority to do so from the Complainant, the Respondent intentionally chose and registered the disputed domain name for its potential to cause confusion with that mark.
In that regard, the Respondent very likely believed that Internet users, who sought the Complainant’s website and were familiar with the Complainant’s mark would be confused, upon entering the name into their browsers, by the similarity between the name and the mark, and consequently assume that a relationship of some sort exists, possibly a sponsorship, affiliation or endorsement of the Respondent’s website by the Complainant, when, in fact, no such relationship exists at all.
To actually exploit that confusion, the Respondent deliberately uses the name to redirect Internet traffic to its own website through which it offers goods and services that are essentially identical to those currently offered by the Complainant both through its “Heavy Equipment Trader” magazine and its website. Doing so likely diverts Internet traffic away from the Complainant’s website, for which that traffic was otherwise destined, to the Respondent’s website instead and consequently deprives the Complainant of resulting business, that would have arisen from that traffic, to its ultimate financial detriment. This conduct is a clear violation of paragraph 4(b)(iv) of the Policy.
In addition, the Panel again notes that the Respondent did not submit a response in this case.
Thus, the Panel concludes that the Complainant has provided sufficient proof of its allegations, with respect to the disputed domain name, to establish a case under paragraph 4(a) of the Policy upon which the relief it now seeks can be granted.
Sole Panelist
Date: August 16, 2016
