1. Parties and Contested Domain Name
The complainant is Husky Oil Operations Limited, 707 - 8th Avenue S.W. PO Box 6525, Station D Calgary Alberta T2P 4J8. The respondent is Cameron Knowlton #201-10 Sierra Morena Mews SW Calgary Alberta T3H 3K5 Canada. The contested domain name is huskyoil.com and the registrar is Network Solutions.
2. Procedural History
The electronic version of the Complaint form was filed on-line through eResolution's Website on October 23, 2001. The hardcopy of the Complaint Form and annexes were received on October 23, 2001. Payment was received on October 24, 2001.
Upon receiving all the required information, eResolution's clerk proceeded to:
- Confirm the identity of the Registrar for the contested Domain Name;
- Verify the Registrar's Whois Database and confirm all the essential contact information for Respondent;
- Verify if the contested Domain Name resolved to an active Web page;
- Verify if the Complaint was administratively compliant.
This inquiry lead the Clerk of eResolution to the following conclusions: the Registrar is Network Solutions, the Whois database contains all the required contact information, the contested Domain Name resolves to an active Web page and the Complaint is administratively compliant.
An email was sent to the Registrar by eResolution Clerk's Office to obtain confirmation and a copy of the Registration Agreement on October 23, 2001. The requested information was received October 24, 2001.
The Clerk then proceeded to send a copy of the Complaint Form and the required Cover Sheet in accordance with paragraph 2 (a) of the ICANN's Rules for Uniform Domain Name Dispute Resolution Policy. The Clerk's Office fulfilled all its responsibilities under Paragraph 2(a) in forwarding the Complaint to the Respondent, notifying the Complainant, the concerned Registrar and ICANN on October 25, 2001. This date is the official commencement date of the administrative proceeding.
No emails were returned 'undeliverable'. All the faxes were successful.
The complaint, official notification and all the annexes were sent via registered mail with proof of service, to the respondent. According to the Canada Post tracking system, all were delivered.
On November 19, 2001, the Respondent submitted, via eResolution Internet site, his response
On November 28, 2001, the Clerk's Office contacted Ethan Katsh, and requested that he acts as panelist in this case.
On November 30, 2001, Ethan Katsh accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.
On December 3, 2001, the Clerk's Office forwarded a user name and a password to Ethan Katsh, allowing him to access the Complaint Form, the Response Form, and the evidence through eResolution's Automated Docket Management System.
On December 3, 2001, the parties were notified that Ethan Katsh had been appointed as sole Panelist"
3. Factual Background
The respondent, Cameron Knowlton, registered the domain name huskyoil.com through Network Solutions on October 13, 1998. The complainant, Husky Oil Co. registered the domain name husky-oil.com on January 12, 1996. Husky Oil is an oil and gas company based in Calgary, Alberta. It was known as Husky Oil and, since a merger with Renaissance Energy in 2000, is known as Husky Energy.
4. Discussion and Findings
In order to prevail in any UDRP case, section 4a requires the complainant to prove all of the following:
1. the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
2. the 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.
A. Protected mark - The panel finds that "the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights". The complainant has registered trademarks for Husky Oil and been doing business using the name Husky Oil since 1953. There is more than sufficient evidence for finding that complainant has met the first criteria of the UDRP concerning rights to a mark.
B. Legitimate use - The UDRP provides several examples of a "legitimate use" of a domain name. These include:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence that the respondent meets any of these criteria for legitimate use.
C. Bad faith - The principal point of contention in this dispute is whether there has been bad faith on the part of the defendant. Complainant charges that respondent registered the domain name merely to make a profit by selling it to the complainant. There were indeed negotiations about a possible sale of the domain name and complainant, at one point, appeared willing to purchase it for $2,000. Respondent refused and made a counter-offer to sell it for 20,000.
The UDRP's first criteria for bad faith is "circumstances indicating that you have registered or you have acquired the domain name 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 your documented out-of-pocket costs directly related to the domain name." The Web site is not being used in any substantive way and the evidence presented shows that selling the domain name
at a profit and in excess of out-of-pocket costs related to the domain name was the motive for registering the domain name
For all of reasons stated above, the Panel decides that complainant has a protected mark, that there is no legitimate use of the domain name being made, and that Respondent has registered and used the domain name in bad faith. The Panel therefore finds in favor of the complainant and orders the transfer of the domain name to the Complainant.
(s) Ethan Katsh
Amherst, Massachusetts, USA
December 21, 2001