Thermawise.com

The timeline behind thermawise.com

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 Questar Gas Company v. David Amberson Claim Number: FA0902001246226 PARTIES Complainant is Questar Gas Company (“Complainant”), represented by Tracey Harrach, Utah, USA. Respondent is David Amberson (“Respondent”), Utah, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <thermawise.com>, registered with Godaddy.com, Inc. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Bruce E. Meyerson as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 5, 2009; the National Arbitration Forum received a hard copy of the Complaint on February 6, 2009. On February 6, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <thermawise.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 February 10, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 2, 2009 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@thermawise.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On March 10, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <thermawise.com> domain name is confusingly similar to Complainant’s THERMWISE mark. 2. Respondent does not have any rights or legitimate interests in the <thermawise.com> domain name. 3. Respondent registered and used the <thermawise.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Questar Gas Company, registered its THERMWISE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,526,820 issued November 4, 2008, filed January 11, 2008). Respondent registered the disputed <thermawise.com> domain name on October 13, 2008. Respondent offered the disputed domain name for sale to Complainant for an amount in excess of the registration costs. DISCUSSION 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 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., FA 95095 (Nat. Arb. Forum 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, D2000-0009 (WIPO Feb. 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. Identical and/or Confusingly Similar Complainant has submitted evidence of its trademark registrations with the USPTO for its THERMWISE mark. The Panel therefore finds that Complainant has sufficient rights in the mark under Policy ¶ 4(a)(i). See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO). Respondent’s <thermawise.com> domain name includes Complainant’s mark, while adding an “a” and the generic top-level domain “.com.” Neither of these alterations carries any meaningful distinction. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the addition of a gTLD, whether it be “.com,” “.net,” “.biz,” or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent has the burden of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its burden, and therefore Respondent must demonstrate its rights or legitimate interests under Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). There is no evidence in the record, including the WHOIS information, to conclude that Respondent is commonly known by the disputed domain name. Moreover, Complainant contends that Respondent is not a licensee of Complainant, and that Respondent is not authorized to register or use the disputed domain name or the THERMWISE mark. Therefore, the Panel finds that Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Complainant notes that Respondent offered the disputed domain name for sale to Complainant for an amount beyond the registration costs. Complainant also argues that Respondent admitted to no plan to use the disputed domain name other than a potential future use to sell energy heaters, and that Respondent did not provide Complainant with requested evidence of these plans. The Panel finds that Respondent has not engaged in a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii), and that Respondent’s offer to sell the disputed domain name evidences its lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 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 ¶ 4(a)(ii)); see also American Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”); Household Int’l, Inc. v. Cyntom Enters., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (finding that the respondent’s “vague and unsupported assertion of ‘plans to sell household goods, supplies and appliances over the Internet’” was insufficient to be considered proof of a legitimate business plan). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith The Panel finds that Respondent primarily intended a sale of the disputed domain name upon registering said domain name, as Respondent made no other use of the domain and has not submitted any evidence to indicate otherwise. Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(i). See America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale); see also Little Six, Inc. v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding the respondent's offer to sell the domain name at issue to the complainant was evidence of bad faith). 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 <thermawise.com> domain name be TRANSFERRED from Respondent to Complainant. Bruce E. Meyerson, Panelist Dated: March 25, 2009 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.