Complainant is Total Temperature Instrumentation, Inc. of South Burlington, Vermont, United States of America, represented by Gravel & Shea PC, United States.
Respondent is Melissa Hudson, Lnstrumart of Camden, Ohio, United States.
The disputed domain name <lnstrumart.com> is registered with Wild West Domains, LLC (“Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on November 21, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 22, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant information for the disputed domain name which differed from that of the named Respondent in the Complaint. The Center sent an email communication to Complainant on November 24, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amended Complaint. Complainant filed an amended Complaint on November 25, 2017.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 27, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 17, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 18, 2017.
The Center appointed Debra J. Stanek as the sole panelist in this matter on January 3, 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.
Complainant owns United States federal trademark registration for INSTRUMART, which issued June 30, 2009. Complainant also owns the domain name <instrumart.com>.
The disputed domain name was registered on October 4, 2017. The disputed domain name is not used with an active website, but resolves to a hosting page and is used in email addresses used to send messages directing purchase orders to third parties.
Complainant is the owner of United States trademark registration No. 3,646,816 for INSTRUMART for “distributorship services in the field of process control instruments, fluid meters & counting devices, and instruments to measure electricity”. The trademark was registered on June 30, 2009.
Complainant has used the mark INSTRUMART at least as early as May 24, 2004, and in commerce at least as early as November 15, 2005. Complainant also owns the domain name <instrumart.com>, which was first registered in 2004.
The disputed domain name <lnstrumart.com> is confusing because it is substantially similar to the Complainant’s domain name. In sans-serif font, the lower-case letter “L” in the disputed domain name is visually indistinguishable from the upper-case letter “I”, i.e., the first letter of Complainant’s domain name <instrumart.com>.
Complainant has found no evidence that the disputed domain name is used for a legitimate business purpose. A Google search did not reveal any commercial use of the disputed domain name, which directs visitors to a generic page for setting up a website.
Complainant has not authorized registration of the disputed domain name and Respondent is unknown to Complainant.
The contact information for the disputed domain name in the WhoIs database identifies Respondent’s “organization” as “lnstrumart”, beginning with a lower-case letter “L”.
Complainant believes that other contact information in the WhoIs is also false. County tax records show that the property was owned by another individual, who is now deceased, and the area code for the telephone number is assigned to a different state.
The disputed domain name has been used in connection with multiple attempts to deceive and defraud third parties. Email messages using the disputed domain name in the sender’s email address have been received by third parties. The messages requested sales quotes for products and included purchase orders from “Instrumart” that were not authorized by Complainant. Complainant learned of these messages when the recipients brought the communications to Complainant’s attention.
Complainant’s annexes include copies of email messages exchanged between several third-party electronics companies and individuals identifying themselves as representatives of “Instrumart”, who are submitting purchase orders for tens of thousands of dollars’ worth of electronics equipment. In each case, the “Instrumart” email messages were sent from email addresses using the disputed domain name (e.g., ap@lnstrumart.com).
Respondent did not reply to Complainant’s contentions.
In order to prevail, a complainant must prove, as to the disputed domain name, that:
(i) It is identical or confusingly similar to a mark in which the complainant has rights;
(ii) The respondent has no rights or legitimate interests in respect to it; and
(iii) It has been registered and is being used in bad faith.
Policy, paragraph 4(a). The Policy sets out examples of circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent’s bad faith registration and use, see Policy, paragraph 4(b).
Not responding to a complaint does not automatically result in a finding for the complainant. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3. A complainant continues to have the burden of establishing each element. The Panel may, however, draw such inferences from Respondent’s default as appropriate. See Rules, paragraph 14(b).
Complainant has established its rights in the mark INSTRUMART by virtue of the evidence of its United States federal trademark registration.
The disputed domain name is not identical to Complainant’s mark. The question then becomes whether the disputed domain name (disregarding “.com”, etc.) is confusingly similar to Complainant’s INSTRUMART mark. This typically involves a straightforward comparison of the textual portion of the mark with the disputed domain name. See WIPO Overview 3.0, section 1.7.
Here the disputed domain name differs only as to its first character. And, in a sans-serif font, it is near impossible to differentiate the lower-case “L” in the disputed domain name from the upper-case “I” in Complainant’s mark.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
The Panel shares the consensus view that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing. See WIPO Overview 3.0, section 2.1 (once complainant makes a prima facie case, burden of showing rights or legitimate interests in the domain name shifts to respondent). Paragraph 4(c) of the Policy sets out examples of how rights and legitimate interests may be established:
(i) before any notice to you 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 (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 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 finds that Complainant has made a prima facie showing under the second element.
It does not appear that Respondent is commonly known by the disputed domain name. Complainant has not authorized Respondent’s use of the disputed domain name. On this record, it does not appear that Respondent has used the disputed domain name in connection with a bona fide offering, quite the opposite, in fact. Respondent appears to be using the disputed domain name for illegitimate purposes, as discussed below.
The Panel concludes that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name.
Complainant must establish that the disputed domain name was registered and is being used in bad faith.
Complainant’s rights in its INSTRUMART mark predate registration of the disputed domain name.
The evidence submitted by Complainant and attested by one of its representatives suggests that Respondent registered and is using the disputed domain name as part of a scheme to defraud. The email communications submitted by Complainant suggest that Respondent knew of Complainant’s mark and domain name and adopted and used the disputed domain name in the senders’ email addresses intending the recipients to believe that the communications were from Complainant.
In light of these facts and the adverse inferences that arise from Respondent’s failure to respond to the Complaint, the Panel finds that Complainant has established that Respondent has registered and is using the disputed domain name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <lnstrumart.com> be transferred to Complainant.
Debra J. Stanek
Sole Panelist
Date: January 17, 2018