WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Fluor Corporation v. CK Ventures Inc.
Case No. D2010-0375
1. The Parties

The Complainant is Fluor Corporation of Irving, Texas, United States of America,

represented by Melbourne IT DBS Inc., United States of America.

The Respondent is CK Ventures Inc. of Christ Church, Barbados, represented by

ESQwire.com Law Firm, United States of America.

2. The Domain Name and Registrar

The disputed domain name <flourdaniels.com> is registered with Nameview Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”)
on March 12, 2010. On March 12, 2010, the Center transmitted by email to Nameview
Inc. a request for registrar verification in connection with the disputed domain name. On
March 23, 2010, Nameview Inc. transmitted by email to the Center its verification
response disclosing registrant and contact information for the disputed domain name
which differed from the named Respondent and contact information in the Complaint.
The Center sent an email communication to the Complainant on March 25, 2010
providing the registrant and contact information disclosed by the Registrar, and inviting
the Complainant to submit an amendment to the Complaint. The Complainant filed an
amended Complaint on March 30, 2010. The Center verified that the amended Complaint
satisfied the formal requirements of the Uniform Domain Name Dispute Resolution
Policy (the ”Policy” or “UDRP”), 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 March 30, 2010. In
accordance with the Rules, paragraph 5(a), the due date for Response was April 19, 2010.
The Response was filed with the Center on April 20, 2010.

The Center appointed Jon Lang as the sole panelist in this matter on May 4, 2010. 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 evolved from a construction company founded in 1912. It is the largest
U.S. based publicly-traded engineering, procurement, construction, maintenance services,
and project management company. It is a FORTUNE 150 company that is ranked No. 1
in FORTUNE magazine's ‘‘Engineering, Construction'' category of America's largest
corporations, and is considered one of the world's safest contractors. Fluor Corporation
has a global workforce of over 40,000 with a presence in more than 60 countries on 6
continents, including a subsidiary organised under the laws of Barbados where the
Respondent is located. The Complainant has been involved in some of the largest projects
in the world.

The Complainant is the owner of the word mark FLUOR DANIEL registered on June 5,
2001 at the United States Patent and Trademark Office (USPTO) with registration
number 2,456,881 and Community Trademark FLUOR DANIEL, registered on January
15, 2001 with registration number 001408863. The Complainant is also the owner of the
FLUOR mark, registered on June 15, 1954 at the USPTO under number 0591442.

The domain name used by the Complainant for its home website,
“www.fluordaniels.com” has been registered since August 30, 2000 (and
<fluordaniel.com>, another domain name of the Complainant, has been registered since
February 1, 1996).

The Complainant sent “cease and desist” letters to the Respondent (to no avail) on
January 19, 2010 and January 26, 2010 informing the Respondent that it was infringing
the Complainant's IP rights.

5. Parties' Contentions

A. Complainant

The Complainant says that it has established rights in the registered trademark “FLUOR
DANIEL” and that the Respondent's domain name, <flourdaniels.com> is confusingly
similar to Complainant's mark, the only difference between the two being the swapping
of the letter “u” with the letter “o”, and the addition of the letter “s”.

A Google search for “Flour Daniels” yields at least 1,570,000 hits. The first result listed
is the Complainant's site, “www.fluor.com”. Other results reference pages within the
FLUOR.COM site, including careers in the company, press releases and investor
information on the FLUOR CORPORATION. The Complainant asserts that this
establishes that the Respondent's domain name is virtually identical to Complainant's
trade name and confusingly similar to its registered trademarks.

The Complainant maintains that the Respondent has no rights or legitimate interests in
the domain name. It goes on to say that there is no evidence that the Respondent owns
registrations for any trademarks containing the terms “Flour Daniels” or “Flour Daniel”,
that the term, “Flour Daniels” does not serve as the Respondent's trade name or business
identity, and that the Respondent does not provide goods or services that are identified or
described by these or similar terms.

The website associated with the disputed domain name registered by Respondent is a
parked website providing links to some of the Complainant's competitors, inactive sites
or sites created by the Respondent in violation of the Complainant's advertising
guidelines, trademark licenses, and business relationships. The Complainant goes on to
state that the Respondent is neither a licensee nor an authorized representative/ partner of
Fluor Corporation.

The Respondent is not using the website in connection with any bona fide offering of
goods or services but rather has chosen a domain name based on a registered trademark
in order to generate traffic to a web site and thereby generate income.

The Complainant alleges that the domain name was registered and is being used in bad
faith. The Respondent registered the disputed domain name, <flourdaniels.com> on
January 10, 2002. The brand FLUOR DANIEL has been a registered US trademark since
2001 with first use noted as January 1, 1998. In addition, the home site of the
Complainant for this brand, FLUORDANIELS.COM, has been registered since August
30, 2000 and FLUORDANIEL.COM has been registered (by the Complainant) since
February 1, 1996. The Complainant has received press all over the world and has a
subsidiary office located in Barbados. In the Complainant's view, the Respondent is
unable to claim that it was unaware of the existence of Complainant and its trademark.

The Complainant also says that the Respondent's bad faith is further shown by it using
the website to which its domain name resolves as a “click-through” website, generating
revenue by providing links to other construction, engineering, procurement and job
related websites thereby taking advantage of the Complainant's well known mark to
achieve a wrongful competitive advantage and commercial gain.

Moreover, and further indicative of bad faith, the Respondent has included a link on the
site which states, “To purchase this domain name, click here”. When clicked, the page is
redirected to a professional domain broker service, DomainBroker.com, where an offer
can be submitted to purchase the domain. If an offer is placed the following error
message is received, “Based on the owner's valuation of this particular domain name,
they will only consider offers above $10,000”.

The Complainant states that the Respondent's registration of misspellings and “typos” of
a famous mark also provides strong evidence of its bad faith.

The Complainant also alleges that the Respondent has been involved in numerous prior
UDRP proceedings in which the transfer of the disputed domain name was decided.

B. Respondent

The Respondent denies that it registered the disputed domain name in bad faith. It states
that it had no knowledge of the Complainant or its trade mark when it registered the
disputed domain name and never intended to target or profit from the Complainant's
trademark. Nevertheless, without making any admissions, it consents to a transfer of the
Domain Name and suggests that the Panel should dispense with the traditional UDRP
analysis and simply order the transfer.

6. Discussion and Findings

Preliminary matter

In view of the Response, the Respondent has urged the Panel to simply order a transfer
and dispense with an analysis under the UDRP, pointing out that such an approach has
been taken in other UDRP cases. But a panel is not obliged to dispense with an analysis
and in this case the Panel has decided to proceed in the usual way. Had the Respondent
wanted to avoid such an analysis, it had sufficient opportunity so to do prior to the
Complaint being issued. A positive response to one of the Complainant's cease and desist
letters would also have saved the Complainant the WIPO fee and no doubt other related
costs. The Panel's analysis is set out below.

Paragraph 4(a) of the Policy requires a complainant to prove that the respondent has
registered a domain name which is

(i) identical or confusingly similar to a trademark or service mark in which the

complainant has rights; and

(ii) that he has no rights or legitimate interests in respect of the domain name; and

(iii) that the domain name has been registered and is being used in bad faith.

A complainant must prove each of these three elements.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in the FLUOR DANIEL trademark so the
question arises as to the similarity of the Respondent's disputed domain name,
<flourdaniels.com>, (hereafter the Domain Name). The Domain Name and trade mark
are identical (ignoring the “.com” suffix and gap between “fluor” and “daniel”) save for
the swapping of the “u” and “o”, and the addition of the letter “s” to the word “Daniel”.

In Xerox Corp. v. Stonybrook Investments, Ltd, WIPO Case No. D2001-0380, where the
domain name at issue was <zerox.com>, it was said by the Panel:

With respect to the confusing similarity between Complainant's trademark and

Respondent's Domain Name, previous decisions extensively discussed the subcategory of
cybersquatters who are sometimes called “typosquatters”. One of these decisions is The
Toronto-Dominion Bank v. Boris Karpachev, WIPO Case No. D2000-1571, where the
appointed panel held: “In determining whether a domain name is confusingly similar to a
trademark, the intention of the domain name registrant is irrelevant. It is the objective
likelihood of confusion that must be assessed. The panel finds that the disputed domain
name is likely to attract customers of the broker seeking to access the broker's website
who misspell or err in typing the domain address they seek. The close misspellings at
issue here are confusingly similar to the Complainant's mark.”

In this case, the second-level part of the Domain Name, “zerox”, is almost phonetically
and visually identical to the Complainant's trademark XEROX. Thus an average internet
user who has an imperfect knowledge or recollection of the name, XEROX, might
accidentally spell it with the letter Z instead of X at the beginning of the word, merely
because of the way the Complainant's trademark is pronounced. The Panel is of the
opinion that this fact alone is sufficient to conclude that the Domain Name is confusingly
similar to Complainant's XEROX trademark.

The present case is very similar to the Xerox case. Given the visual and phonetic
similarity between the trademark of the Complainant and Domain Name, there is clearly
a possibility, if not likelihood that Internet users may be confused into thinking that the
owner of the Domain Name is also the owner of the trademark to which it is similar. The
swapping of the letters “o” and “u”, and the addition of the‘s' does nothing to reduce this
confusion. For these reasons, the Panel finds that the Domain Name is confusingly
similar to the FLUOR DANIEL trademarks.

B. Rights or Legitimate Interests

The Respondent has not advanced any argument against the assertions made by the
Complainant that it (the Respondent) has no rights or legitimate interests in the Domain
Name. Maybe this is because that, in the Respondent's view, there was little point, given
its consent to a transfer. Nevertheless the Panel, given its approach i.e. to provide a
reasoned decision, will say something about this issue.

The mere registration of a domain name does not give the owner a right or a legitimate
interest in respect of that domain name. There must be something more.
In Drexel University v. David Brouda, WIPO Case No. D2001-0067 the panel stated that
“[r]ights or legitimate interests cannot be created where the user of the domain name at
issue would not choose such a name unless he was seeking to create an impression of
association with the Complainant”.

The Domain Name was registered in 2002. The Complainant's brand was established by
the time of registration and it's US and Community trademarks both registered by then
too (in 2001). Moreover, <fluordaniels.com> was registered on August 30, 2000 and
<fluordaniel.com>, registered on February 1, 1996, (both domain names of the
Complainant).

The Respondent has said that it had no knowledge of the Complainant or its trademark
when it registered the Domain Name in January 2002, but no reason is given as to why
that particular domain name was chosen. The only use made of the Domain Name, which
often gives a clue as to the purpose of registration, is to transport internet users to a site
containing links to businesses with similar interests to that of the Complainant and which
moreover contains reference to the Complainants' mark, FLUOR. In these circumstances,
it is difficult to accept that the Respondent had a reason for registration of the Domain
Name beyond a desire to drive Internet users to its site, or to in some other way benefit
from the fame of the Complainant's brand. This case seems to be very similar to the
Drexel case referred to above.

There is no evidence before this Panel that the Respondent has rights or legitimate
interests in the Domain Name. There is no evidence before this Panel to contradict or
challenge the contentions of the Complainant. This Panel therefore finds that the
Complainant has made out a prima facie case that the Respondent has no rights or
legitimate interests in the Domain Name which has not been contradicted in anyway. The
Panel therefore finds that this element too of paragraph 4(a) of the Policy is established.

C. Registered and Used in Bad Faith

One way a complainant may demonstrate bad faith registration and use is to show that a
respondent has intentionally attempted to attract, for commercial gain, Internet users to its
website by creating a likelihood of confusion with a complainant's mark as to the source,
sponsorship, affiliation or endorsement of its website or of products or services on it. This
appears to be the case here.

Moreover, the Respondent has included a link on its site to a professional domain broker
service where an offer can be submitted to purchase the Domain Name. As earlier noted,
the Complainant says that if an offer of $250 is made an error message appears stating
“Based on the owner's valuation of this particular domain name, they will only consider
offers above $10,000”.

In Trip.com, Inc. v. Daniel Deamone, WIPO Case No. D2001-1066, it was said:
There is nothing inherently wrongful in the offer or sale of domain names, without more,
such as to justify a finding of bad faith under the Policy. However, the fact that domain
name registrants may legitimately and in good faith sell domain names does not imply a
right in such registrants to sell domain names that are identical or confusingly similar to
trademarks or service marks of others without their consent. Although Respondent's offer
of the Domain Name for sale was not made specifically to Complainant or its competitor,
offers for sale to the public may nevertheless constitute evidence of bad faith under the
Policy.

The circumstances of the offer for sale made on behalf of the Respondent are very similar
to those described in the Trip.com case.

In short, the Panel cannot foresee any legitimate explanation for registration or use of the
Domain Name.

Given the foregoing, the Panel need not express any view or finding on the Complainant's
allegation that the Respondent has been involved in numerous prior UDRP proceedings
in which a transfer of the disputed domain name was decided.

In all the circumstances, this Panel finds that, for the purposes of the Policy, there is
evidence of registration and use of the Domain Name in bad faith.

7. Decision

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 name <flourdaniels.com> be transferred to the
Complainant.

Jon Lang
Sole Panelist

Dated: May 10, 2010