DECISION

Honeywell International, Inc. v. Multimedia Services

Claim Number:  FA0406000282552

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 Multimedia Services (“Respondent”), 145 Park Avenue, New York, NY, 10010.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <honewell.com>, registered with Tucows Inc.

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically June 2, 2004; the Forum received a hard copy of the Complaint June 7, 2004.

On June 2, 2004, Tucows Inc. confirmed by e-mail to the Forum that the domain name <honewell.com> is registered with Tucows Inc. and that Respondent is the current registrant of the name. Tucows Inc. verified that Respondent is bound by the Tucows Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On June 10, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 30, 2004, 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@honewell.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On July 6, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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 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. The domain name registered by Respondent, <honewell.com>, is confusingly similar to Complainant’s HONEYWELL mark.

2. Respondent has no rights to or legitimate interests in the <honewell.com> domain name.

3. Respondent registered and used the <honewell.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Honeywell International, Inc., is a manufacturer of technologies including aerospace products and services, control technologies for buildings, homes and industry, automotive products, power generation systems, specialty chemicals, fibers, plastics, and advanced materials.

Complainant holds various registrations for the HONEYWELL mark, 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.

Respondent, Multimedia Services, registered the <honewell.com> domain name October 28, 2000.  The disputed domain name houses a website called “Internet Searchlite,” which offers directory-like links to categorized services.

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 will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires Complainant to 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 to and/or Confusingly Similar

Complainant established with extrinsic proof in this proceeding that it has rights in the HONEYWELL mark.  Complainant’s fifty year-old trademark registration issued by the USPTO is sufficient to establish Complainant’s rights in the HONEYWELL mark under Policy ¶ 4(a)(i).  See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that 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, <honewell.com>, is confusingly similar to Complainant’s HONEYWELL mark.  The only difference is the omission of the letter “y,” which does not significantly distinguish the domain name from the mark.  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding the domain name <statfarm.com> confusingly similar to Complainant’s STATE FARM mark).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights to or Legitimate Interests

Complainant established that it had rights in the mark used in the disputed domain name. Complainant further alleged that Respondent has no such rights to or legitimate interests in the mark or domain name.  Respondent did not file a Response.  In the absence of a Response, the Panel may accept any reasonable assertions in the Complaint as true.  See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence); see also Bayerische Motoren Werke AG v. Bavarian AG, FA110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a Response the Panel is free to make inferences from the very failure to respond and assign greater weight to certain circumstances than it might otherwise do).

Respondent’s use of the disputed domain name does not establish rights or legitimate interests.  Respondent is using the <honewell.com> domain name to lead Internet users to a directory site, presumably to generate referral fees.  In addition, the disputed domain name <honewell.com> is a misspelling of Complainant’s mark (and subsequent domain name).  The Panel infers that Respondent is preying on the typing errors of those seeking information on Honeywell to generate revenues, which is not a bona fide offering of goods or services, pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name, pursuant to Policy ¶ 4(c)(iii).  See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding Respondent’s use of the disputed domain name to redirect Internet users to websites to be unrelated to Complainant’s mark, websites where Respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Disney Enters, Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that Respondent’s diversionary use of Complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).

Nothing in this record and nothing in Respondent’s WHOIS registration information shows or even tends to show that Respondent is commonly known by <honewell.com>, pursuant to Policy ¶ 4(c)(ii).  See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding Respondent had no rights in a domain name when Respondent was not known by the mark).

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Complainant alleged that Respondent registered and used the <honewell.com> domain name in bad faith.  Respondent has not appeared to bring any evidence to refute that contention.  Complainant has shown that Respondent is using a domain name that is confusingly similar to Complainant’s HONEYWELL mark, to attract Internet users and earn referral fees.  Creating confusion by appropriating another’s mark for profit is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).   See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where Respondent attracted users to advertisements); see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith where Respondent linked the domain name to another website <iwin.com>, presumably receiving a portion of the advertising revenue from the site by directing Internet traffic there, thus using a domain name to attract Internet users for commercial gain).

Further, Respondent’s domain name is not a cognizable phrase.  The Panel infers that the only use of the domain name is to attract visits from those who misspell Complainant’s HONEYWELL mark.  Attracting Internet traffic by relying on errors by Complainant’s customers is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii), and is otherwise known as “typosquatting.”  See Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (finding that Respondent registered and used the <zonelarm.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because the name was merely a typosquatted version of Complainant's ZONEALARM mark).

The Panel finds that Complainant has established Policy ¶ 4(a)(iii).

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 <honewell.com> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Carolyn Marks Johnson, Panelist

Dated: July 20, 2004

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