Leidos, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2107001954398
Complainant is Leidos, Inc. (“Complainant”), represented by Kandis M. Koustenis of Bean, Kinney & Korman P.C., Virginia, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <leidosforvaccines.com>, registered with GoDaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 9, 2021; the Forum received payment on July 9, 2021.
On July 12, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <leidosforvaccines.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 14, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 3, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@leidosforvaccines.com. Also on July 14, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 9, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Leidos, Inc., has maintained registration in its LEIDOS mark with the United States Patent and Trademark Office (USPTO) since 2013. The disputed domain name, <leidosforvaccines.com>, is confusingly similar to Complainant’s LEIDOS mark because it wholly incorporates Complainant’s LEIDOS mark while adding the terms “for” and “vaccines” and the “.com” generic top-level domain (“gTLD”) to form a domain name.
Respondent does not have any rights or legitimate interests in the <leidosforvaccines.com> domain name because Respondent is not commonly known by the disputed domain name nor is Respondent a licensee of Complainant’s LEIDOS mark. Respondent is not using the <leidosforvaccines.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Respondent uses the disputed domain name to host pay-per-click advertisements. Some of these advertisements are used to distribute malware.
Respondent registered and uses the <leidosforvaccines.com> domain name in bad faith because Respondent uses the disputed domain name to distribute malware. Respondent registered and uses the <leidosforvaccines.com> out of opportunistic bad faith because Respondent uses the term “vaccines” to potentially capitalize on the ongoing COVID-19 vaccine effort.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant offers goods and services under its registered LEIDOS mark across a variety of industry sectors. (See USTPO Reg. 5475704, registered May 22, 2018, computer programs and software; USTPO Reg. 5257665, registered August 1, 2017, aircraft repair, maintenance and reconditioning, communication services, air traffic control services, and educational services; USTPO Reg. 4937101 registered April 12, 2016, management consulting services in the field of supply chain management, computer education training, and basic and applied research services,). The disputed domain name, <leidosforvaccines.com>, is confusingly similar to Complainant’s LEIDOS mark.
Respondent registered the <leidosforvaccines.com> domain name on May 18, 2021.
Respondent does not have any rights or legitimate interests in the <leidosforvaccines.com> domain name. Respondent uses the disputed domain name to host pay-per-click advertisements. Some of these advertisements are used to distribute malware.
Respondent registered and uses the <leidosforvaccines.com> domain name in bad faith.
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."
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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in its LEIDOS mark through registration with the USPTO. See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”).
Respondent’s <leidosforvaccines.com> domain name is confusingly similar to Complainant’s LEIDOS mark because the disputed domain name wholly incorporates Complainant’s LEIDOS mark while adding in two terms and a “.com” gTLD to form a domain name.
Respondent does not have any rights or legitimate in the <leidosforvaccines.com> domain name because Respondent is not commonly known by the <leidosforvaccines.com> domain name nor has Respondent received authorization to use Complainant’s LEIDOS mark. A respondent may not be commonly known by a domain name where the identifying WHOIS information is unrelated to a domain name and where a respondent has not received authorization to use a complainant’s mark. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). The WHOIS information lists “Carolina Rodrigues” of “Fundacion Comercio Electronico” as the registrant of the domain name. Complainant has not authorized Respondent to use Complainant’s LEIDOS mark. Therefore, Respondent is not commonly known by the <leidosforvaccines.com> domain name under Policy ¶ 4(c)(ii).
Respondent is not using the <leidosforvaccines.com> domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent is using the domain name to host pay-per-click advertisements in competition with Complainant. Use of a domain name to host pay-per-click advertisements in competition of a complainant is evidence of a domain name not being used in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Persohn v. Lim, FA 874447 (Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process).
Furthermore, Respondent is not using the <leidosforvaccines.com> domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because Respondent is using the <leidosforvaccines.com> domain name to distribute malware. See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”).
Respondent registered and uses the <leidosforvaccines.com> domain name in bad faith under Policy ¶ 4(a)(iii). Use of a domain name to distribute malware constitutes bad faith under Policy ¶ 4(a)(i). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”).
Respondent registered and uses the <leidosforvaccines.com> domain name in bad faith because Respondent acted in opportunistic bad faith when registering the domain name to capitalize on the COVID-19 vaccine effort. Opportunistic bad faith may be found where a domain name was registered within a close temporal proximity of a significant event. See Atlantic Automotive Corp. v. michelle popp, FA 1787763 (Forum June 26, 2018) (“The Panel is of the view that the registration of a domain name in temporal proximity to a merger or acquisition involving Complainant and its associated marks supports a finding of bad faith.”); see also 3M Company v. Nguyen manh Song / manh Song, FA2006001899349 (Forum July 14, 2020) (finding an attempt to capitalize on the pandemic to be opportunist bad faith). The <leidosforvaccines.com> domain name was registered in May of 2021 when there was a big push for vaccines to be distributed. Therefore, the Panel may find that Respondent registered and uses the <leidosforvaccines.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <leidosforvaccines.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 23, 2021
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