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and Mediation Center
Allied Building Products Corp. v. Richard Henkel
Case No. D2006-0829
1. The Parties
The Complainant is Allied Building Products Corp. of New Jersey, United States of America, represented by Hinckley, Allen & Snyder, LLP, United States of America.
The Respondent is Richard Henkel, of Iowa, United States of America.
2. The Domain Names and Registrar
The disputed domain names <alliedbuildingproducts.biz>, <alliedbuildingproducts.info>,
and <alliedbuildingproducts.org> are registered with Melbourne IT trading
as Internet Names Worldwide.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 26, 2006. On June 30, 2006, the Center transmitted by email to Melbourne IT trading as Internet Names Worldwide a request for registrar verification in connection with the domain names at issue. On July 4, 2006 and July 27, 2006, Melbourne IT trading as Internet Names Worldwide transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 27, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 16, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 17, 2006.
The Center appointed Sally M. Abel as the sole panelist in this matter on August 22, 2006.
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.
4. Factual Background
The Complainant, Allied Building Products Corp., retails a full line of residential and commercial building and construction products and materials via its more than 130 retail outlets in twenty seven (27) states across the United States of America, including one location approximately seven miles from the Respondent, and its website at “alliedbuilding.com” . The Complainant has revenues of over US $1 billion annually. The Complainant has used the mark and name ALLIED BUILDING PRODUCTS CORP. since 1986, and has promoted its ALLIED branded building and construction products and related retail operations for more than fifty (50) years.
The Complainant owns U.S. federal trademark registrations as follows:
1. ALLIED BUILDING PRODUCTS CORP. 2,912,272 12/21/04
2. ALLIED (and Design) 2,701,606 4/1/03
On February 27, 2006, the Respondent registered the domain name, <alliedbuildingproducts.org>. When the Complaint was filed, the content posted on the <alliedbuildingproducts.org> site included an offer to sell the domain, reading: “This site is for sale - $100,000.00.” and “We will entertain offers”. Otherwise, the site was titled “Quality Construction” and stated “For all your siding and window needs call Rich at 563-326-2819.”
On March 2, 2006, the Respondent registered the <alliedbuildingproducts.info> domain name. The Respondent used that domain to link to “smokehousesquare.com”, which offered the “smokehousesquare.com” domain for sale for $250,000.
On May 30, 2006, the Respondent registered the <alliedbuildingproducts.biz> domain name. When the Complaint was filed the content on that site included an offer to sell the domain, stating: “This site is for sale - $60,000.00 - June 20, 2006” and “Add $100.00 per day after that date.”
Since the Complaint was filed, the content on each of the sites in question has been changed; none of the domains are currently offered for sale on any of the sites.
On or around June 9, 2006, the Respondent contacted the Complainant by email offering to sell the three disputed domain names and the domain name “alliedbuilding.us” to the Complainant, “all offers considered”, and claiming to be offering the domains to “various allied businesses”. After some initial discussion in which the Respondent solicited from the Complainant “a reasonable offer that mimics market value”, the Complainant offered $100. On June 16, 2006, the Respondent rejected that offer, asserting:
“I will not sell these sites for less than $150,000 or $60,000 each (discounted
to $150,000 for all four)...$100.00 is nowhere close to market value, an insult
to be truthful. For a company of your size- over one billion in annual revenue-
this is a tiny investment...If this amount is not acceptable to you, I will
begin marketing these domains on the open market.”
5. Parties’ Contentions
The Complainant alleges that all of the domain names at issue are confusingly similar to its name and mark ALLIED BUILDING PRODUCTS CORP. by which the Complainant has been known for at least 20 years and for which the Complainant has owned a U.S. federal trademark registration since December 2004. The Respondent’s deletion of the abbreviation “CORP” is a minor difference that does not diminish the potential for confusion. All of the domain names encompass the distinctive portion of the Complainant’s mark. Consumers, who typically try to guess the URL of the company whose site they want to visit, may be misled by Respondent’s “typosquatting”.
The Complainant alleges that the Respondent’s geographic address is only seven (7) miles from the Complainant’s ALLIED BUILDING PRODUCTS CORP. branded retail outlet in Bettendorf, Iowa. The Respondent has no right or legitimate interest in any of the disputed domain names. None of the domain names comprise his legal name or a name by which he is known, nor did he use any of the domains in connection with a bona fide offering of goods or services prior to the dispute. The Respondent has not made a legitimate non-commercial or fair use of any of the domain names. The Complainant has not authorized or licensed the Respondent’s activities.
The Complainant alleges that the Respondent registered and is using the domain names in bad faith and for commercial gain, primarily to intentionally divert traffic to the Respondent’s websites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s websites. At <alliedbuildingproducts.org> consumers looking for the Complainant see a competing website stating “Call Richard for all of your siding and window needs”. The Respondent’s behavior in this regard is solely for the purpose of commercial gain. Likewise, the Respondent obtained the domain names at issue primarily for the purpose of selling, renting or otherwise transferring the domain names to the Complainant or to one of the Complainant’s competitors, for valuable consideration in excess of the Respondent’s out of pocket costs for the domain names. The Respondent offered to sell the domain names to the Complainant for $60,000 each, or $150,000 for all 3 and the domain name “alliedbuilding.us”, noting the size of the Complainant’s business and suggesting the amount he requested was a “tiny investment” for a company of that size. The Respondent threatened that if the Complainant did not buy the domain names from him at his price he would “begin marketing these domains on the open market”. The Respondent has also offered the <alliedbuildingproducts.org> domain name for sale for $100,000 on that site. The Respondent registered each of the domain names for a year; Melbourne IT’s current cost to register a domain name for a year is $35. Therefore, the Respondent’s out of pocket costs could not have exceeded $140.
The Complainant alleges that it is reasonable to infer the Respondent’s actual knowledge of the Complainant’s rights in ALLIED BUILDING PRODUCTS CORP. given that he used two of the domain names to advertise competing goods and services, that the Respondent is located only 7 miles from an ALLIED BUILDING PRODUCTS CORP. retail location, and that he contacted the Complainant within weeks following obtaining the domain names trying to sell them to the Complainant.
The Complainant further alleges that typosquatting often is recognized as bad faith registration and use.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Rules provide: “If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.” Rules, paragraph 5(e). See also Rules, paragraph 14. There is no response in this case; there are no exceptional circumstances presented. The Complaint establishes that the Complainant has met its burden of proof on each of the required elements.
A. Identical or Confusingly Similar
The Complainant owns trademark rights in ALLIED BUILDING PRODUCTS CORP. While
none of the domain names in question are identical to this mark, all are confusingly
similar. <alliedbuildingproducts.org>, <alliedbuildingproducts.info>
and <alliedbuildingproducts.biz> differ from the Complainant’s mark
only in that the generic “corp.” has been eliminated, and the gTLD
varied in each. These are distinctions without a difference. See Gateway,
Inc. v. James Cadieux, WIPO Case No. D2000-0198
(May 25, 2000). It is beyond question that the domains are confusingly similar
to the Complainant’s mark.
The Complainant has met its burden on this factor. The Panel considers the Complainant’s ALLIED (and Design) U.S. trademark registration to be irrelevant to this proceeding.
B. Rights or Legitimate Interests
There is nothing in the record to suggest that the Respondent has any legitimate rights or legitimate interests in the domain name. The Complainant has made out a prima facie case in this respect. The Respondent has not filed a Response.
The Complainant has met its burden on this factor.
C. Registered and Used in Bad Faith
On the record there is no question that the Respondent registered each of the domain names primarily for the purpose of attempting to sell them to the Complainant for more than the Respondent’s out of pocket expenses. The Respondent has engaged in classic cybersquatting (the Panel does not consider Respondent’s behavior to be “typosquatting”). After obtaining the domains, the Respondent contacted the Complainant directly, intentionally soliciting an offer to buy the domain names. In rejecting the Complainant’s $100 offer, the Respondent showed his hand. His inflated view of the value of the domain names, coupled with his obvious knowledge of the Complainant and his threat to offer the domains for sale to the public if the Complainant did not meet his exorbitant price, make his behavior and intent clear.
The Respondent would have paid Melbourne IT a total of approximately $140 for all three domain names at issue and the domain name “alliedbuilding.us”. He then offered to sell them to the Complainant for at least $150,000, and threatened to offer the domain names to the general public if the Complainant declined to buy the names at that price (or at the $60,000 a piece price the Respondent otherwise was willing to take). The Respondent’s mock outrage at being offered far less than what he considered to be “market value” for the domain names, and his insistence that market value was at least $150,000, further highlights the fact that he deliberately and wrongfully targeted the Complainant for a large payout.
The Complainant has established that the Respondent registered each of the domain names in question “primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [the Respondent’s] documented out-of-pocket costs directly related to the domain name”, a textbook example of bad faith registration and use as set forth in the Policy (paragraph 4(b)(i)).
The Complainant has met its burden on this factor; for this reason it is not
necessary to consider the Complainant’s additional allegations regarding
the Respondent’s bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names, <alliedbuildingproducts.biz>, <alliedbuildingproducts.info>, and <alliedbuildingproducts.org>, be transferred to the Complainant.
Sally M. Abel
Dated: September 5, 2006