Honeywell.net

The timeline behind honeywell.net

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Honeywell International Inc. v. r9.net Claim Number: FA0503000445594 PARTIES Complainant is Honeywell International Inc. (“Complainant”), represented by Peter S. Sloane of Ostrolenk, Faber, Gerb & Soffen, LLP, 1180 Avenue of the Americas, New York, NY 10036. Respondent is r9.net (“Respondent”), P.O. Box 795923, Dallas, TX 75379-5923. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <honeywell.net>, registered with Enom, Inc. PANEL The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding. Calvin A. Hamilton as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 24, 2005; the National Arbitration Forum received a hard copy of the Complaint on March 28, 2005. On March 24, 2005, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the domain name <honeywell.net> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On March 30, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 19, 2005 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@honeywell.net by e-mail. A timely Response was received and determined to be complete on April 18, 2005. A timely Additional Submission was received from Complainant on April 25, 2005. No reply to Complainant’s Additional Submission was submitted by Respondent. On April 25, 2005, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Calvin A. Hamilton as Panelist. On May 9, 2005, the Panel ordered that the time period for issuing its Decision be extended until May 23, 2005. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant Complainant makes the following assertions: 1. The domain name registered by Respondent, <honeywell.net>, is identical to Complainant’s HONEYWELL name and mark. 2. Respondent is a trademark infringer without any legitimate rights or interests in the <honeywell.net> domain name. 3. Respondent registered and used the <honeywell.net> domain name in bad faith. B. Respondent R9.net, against whom the Complaint was initiated, filed no Response. However, David Honeywell for <honeywell.net> service members and various Honeywell family members filed a named Response which was received by the Forum in a timely manner (hereinafter, “DH Submission”). The DH Submission makes the following assertions: 1. The domain name in question is not confusingly similar to the HONEYWELL service mark, given the popularity of the Honeywell surname in the U.S. 2. Honeywell family members and others have legitimate noncommercial rights and interests with respect to the <honeywell.net> domain name 3. A Honeywell family member registered the <honeywell.net> domain name in good faith. C. Additional Submissions Complainant contends that since the Response was filed in the name of a third party, it should be disregarded in its entirety because David Honeywell does not own the <honeywell.net> domain name but rather that “David Honeywell” is a pseudonym for r9.net. Furthermore, in answer to the allegations made in the DH Submission, Complainant argues that the primary significance of “Honeywell” is as a trademark rather than as a surname, that Respondent has not made any legitimate noncommercial use of <honeywell.net> and finally that Respondent registered the <honeywell.net> domain name in bad faith. This Additional Submission has been considered to the same extent as the DH Submission. FINDINGS The Panelist first addresses the procedural issue of identity of Respondent. ICANN Rule 1 defines “Respondent” as “the holder of a domain-name registration against which a complaint is initiated”. In Wells Fargo & Co. v. John Doe as Holder of Domain Name, FA 362108 (Nat. Arb. Forum Dec. 30, 2004), the Panel found that “the Policy and Rules anticipate that the ‘holder’ of a domain name registration will be the individual or entity listed in the WHOIS information.” The WHOIS information is a database compiled of the actual domain name registration information given to the respective registrars. The Panel agrees with the Panel in the aforementioned decision that this WHOIS information is the “most reliable source available in obtaining accurate addresses of domain name registrants.” See Trustees of the Trust Number SR-1 v. Turnberry, Scotland Golf and Leisure, FA 122224 (Nat. Arb. Forum Nov. 3, 2002) (“The register maintained by an ICANN registrar must provide accurate information as to the identity of domain registrants. The human person or other legal entity shown as the registrant must be assumed to be such by third parties seeking to ascertain a registrant’s identity by such means as a Whois search.”). The WHOIS record for the <honeywell.net> domain name identifies r9.net, not David Honeywell, as the holder of the domain name. David Honeywell contends that he and others maintain a variety of services to family and non-family members under <honeywell.net> such as email messaging, online web-based email services as well as personal websites and that the domain was originally registered using a domain proxy service provided by R9 Internet Services who provided said services as part of the domain registration. It is a matter of public knowledge that by using such a service, the proxy's contact information, rather than the registrant-in-fact's contact information appears on the registration record. This Panel is persuaded by the reasoning set out in CyBerCorp Holdings, Inc. v. Allman, FA 244090 (Nat. Arb. Forum May 14, 2004) that concerns data privacy, to the extent that using a proxy registrant or proxy service is not per se evidence of bad faith. In Imperial Coll. of Science, Tech. & Medicine v. Webweaver Media Constr., D2000-1146 (WIPO Nov. 22, 2000), a third party, who filed a Response, had the rights and legitimate interests of the respondent considered, particularly because the complainant raised no objection to the claimed interest of the respondent as beneficial owner of the domain name at issue and to the submission of a Response to the Complaint on that basis. In the present case, Complainant has objected and contends in its Additional Submission that David Honeywell is a third party, that this is a ploy previously used by r9.net, that David Honeywell is a pseudonym of r9.net and that David Honeywell is a fictionalized character. Indeed, the Panel has been unable to ascertain that David Honeywell is in fact the beneficial owner of the domain name (when a party has beneficial ownership of something, the party ordinarily has the right to use that property even though another party may have legal ownership or title to the property or asset). See Black’s Law Dictionary 1540 (7th ed.) as was established in North Shore Towers Apartments, Inc. v. Kroll, FA 109030 (Nat. Arb. Forum July 2, 2002); see also Fitter Int’l Inc. v. Eenable Inc., D2001-0979 (WIPO Oct. 12, 2001). On the other hand, in Société des Produits Nestlé SA v. HAES Inc., D2002-0887 (WIPO Dec. 11, 2002), the Panel found that “[t]he integrity of the registrar must be preserved and third parties cannot be bound by an agreement about registration which does not find expression in the registrar which is publicly available. In other words, the Panel must consider the Registrant as the legal owner of the disputed domain name, not somebody claiming to be the beneficial unregistered owner.” Furthermore, in the case of a domain proxy service, if data privacy is the absolute concern, it would be reasonable to expect that the service encompass the resolution of third party claims arising out of the use of a domain name registered by said proxy on registrant-in-fact’s behalf, or alternatively, some provision whereby the domain proxy service provider may inform the Panel of the registrant-in-fact’s real identity once notified of the commencement of such an administrative proceeding, which is mandatory on the domain name registrant who is contractually bound by the Policy, which is incorporated by reference into registration agreements. There has been no communication from R9 Internet Services in relation to this procedure. Moreover, there is no information or content about its services on the website of the alleged domain proxy service provider, R9 Internet Services, <r9.net>. Consequently, the fact that David Honeywell has failed to provide the Panel with the terms of the domain proxy service agreement that allegedly exists, bolstered by the unrefuted allegations of fictitiousness set out in the Complainant’s Additional Submission, leads this Panel to find that David Honeywell has not met the burden of proof regarding beneficial ownership of the domain name and consequently cannot be considered Respondent in this action. The Respondent is r9.net and r9.net has not filed a Response. Notwithstanding, the DH Submission has been considered in making this Decision. As regards the substantive issues of the present proceeding, Complainant is a diversified technology and manufacturing leader of aerospace products and services, control technologies for buildings, homes and industry, automotive products, power generation systems, specialty chemicals, fibers, plastics and advanced materials. Over the past ninety years, Complainant has used the HONEYWELL name and mark to identify its goods and services. In this period of time, Complainant registered its HONEYWELL mark with governments throughout the world, including the first, registered with the U.S. Patent and Trademark Office (“USPTO”) on January 31, 1950 (Reg. No. 520,350). Complainant also holds the registration for the <honeywell.com> domain name, registered on February 11, 1988 as well as country-specific websites such as <honeywell.com.au>, <honeywell.com/china>, and <honeywell.com/uk>. Respondent registered the disputed domain name <honeywell.net> on March 12, 2000. The disputed domain name houses a website that shows a directory of links to third party websites which is a so-called “parking” or “under construction” page. There is a restricted password-access area at <honeywell.net/admin>. A print out of said website dated March 23, 2005 does not indicate email messaging or subdomain services, although at this decision’s date the right hand banner includes a link “Sign up for webmail and subdomains”, which redirects to <onemail.net> where <honeywell.net> can be chosen from several different domain names as a preferred email address. There is no specific mention of services for Honeywell family members. DISCUSSION Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.” 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; (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. Identical and/or Confusingly Similar Complainant’s numerous registrations for its HONEYWELL mark throughout the world are sufficient to establish Complainant’s rights in the HONEYWELL mark under the Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption.). The domain name registered by Respondent, <honeywell.net>, is identical to Complainant’s HONEYWELL mark. Notwithstanding that “Honeywell” may be a widely registered trademark and has never been considered a mere surname by the United States Patent and Trademark Office (U.S.P.T.O.) for registration purposes, one cannot belie the fact that Complainant is called Honeywell International Inc. precisely because the surname of one of its founders was Honeywell found in the “Our History” section of the Internet website at <honeywell.com>, stating that “a young engineer named Mark Honeywell was perfecting the heat generator as part of his plumbing and heating business. Two years later, he formed the Honeywell Heating Specialty Co, Incorporated...” “Honeywell” is primarily a surname and trademark registration does not give monopoly rights over the use of the word. The addition of a generic top-level domain should be an issue for the purpose of determining whether it is identical or confusingly similar otherwise it defeats the purpose of having distinct top-level domains. Complainant contends to be a network provider, an assertion that Respondent has failed to rebut. In the absence of a Response from Respondent that challenges Complainant’s assertions, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant contends that Respondent is not authorized or licensed to register or use a domain name that incorporates Complainant’s mark. Moreover, Complainant argues that Respondent is not commonly known by the <honeywell.net> domain name and therefore has failed to establish rights and legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). Respondent has not submitted any evidence that r9.net is commonly known as the disputed domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (finding that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is one factor in determining that Policy ¶ 4(c)(ii) does not apply). Furthermore, since beneficial ownership of the domain name has not been established, the contentions made in the DH Submission cannot assist in determining rights or legitimate interests. Furthermore these contentions were unsupported by documentary evidence which would be required to establish a right and legitimate interest in respect of the domain name. See G. A. Modefine S.A. v. Mani, D2001-0537 (WIPO July 20, 2001) (finding that the respondent had rights and legitimate interests in the <armani.com> domain name, where the domain name reflects the initials of the respondent’s first and middle name, combined with its entire last name). The Panel is unable to determine that Respondent is commonly known by the domain name pursuant to Policy ¶ 4(c)(ii). Moreover, Complainant alleges that Respondent is appropriating Complainant’s mark to redirect Internet users to a website that offers a directory of links to third party websites unrelated to Complainant’s business, a search engine and a banner ad for adult entertainment services and that this is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). In the absence of a Response filed by the Respondent together with the lack of standing of David Honeywell to submit a Response on behalf of Respondent and the uncorroborated contentions of the DH Submission, the Panel is prevented from concluding that the domain name is used to send electronic email for the Honeywell family or that there is a legitimate noncommercial use of the domain name as a family information site. See Penguin Books Ltd. v. Katz, D2000-0204 (WIPO May 20, 2000); see also RMO, Inc. v. Burbidge, FA 96949 (Nat. Arb. Forum May 16, 2001). Furthermore, the link “Sign up for webmail and subdomains” referred to above, which redirects to <onemail.net> is clearly a use for commercial benefit, given that the sign up information specifies prices for the different services. For all these reasons, the Panel finds that Respondent lacks rights and legitimate interests in the domain name satisfying Policy ¶ 4(a)(ii). Registration and Use in Bad Faith There being no beneficial ownership of the disputed domain name in favor of David Honeywell which would allow the Panel to consider the DH Submission and there having been no Response submitted by Respondent, the Panel is compelled to accept all reasonable allegations set forth by Complainant as true and accurate. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence) Complainant has demonstrated that Respondent has a prior history in registering domain names corresponding to the trademarks of others which demonstrates a pattern of conduct evidencing its bad faith. See Hartmann, Inc. v. R9.net, FA 263580 (Nat. Arb. Forum, June 17, 2004); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003). The content described in those cases of the websites associated with the disputed domain names is similar to the content of the website linked to <honeywell.net>, such as links to third party websites unrelated to Complainant’s business, a search engine and a banner ad for adult entertainment services. The Panel finds that a reasonable Internet user would not be confused or even associate Complainant with the content of the website at <honeywell.net> but rather understand that that domain name is used and owned by someone (whether individual, business or other organization) who is not Complainant.. Furthermore, given that there are millions of websites with references to “Honeywell” and thousands of URLs that contain the word “Honeywell”, it is unlikely that consumers of Complainant would in fact be diverted to the website of Respondent, unless they knew of the <honeywell.net> domain name and directly typed the domain name into an Internet web browser. The HONEYWELL mark is, as established, a widely registered trademark. This trademark registration generally constitutes constructive notice of the mark. Registration of the disputed domain name took place in March 2000, when HONEYWELL was a long-standing trademark and service name around the world. Furthermore, Respondent has provided incomplete contact information to the registrar which as stated supra is critical to the effectiveness of the UDRP. That said, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <honeywell.net> domain name be TRANSFERRED. Calvin A. Hamilton, Panelist Dated: May 23, 2005 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.