Agilent Technologies, Inc. v. Lukas Moris
Claim Number: FA2107001955567
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Alexander J.A. Garcia of Perkins Coie LLP, Colorado, USA. Respondent is Lukas Moris (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agiients.com>, (‘the Domain Name’) registered with NameSilo, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 16, 2021; the Forum received payment on July 16, 2021.
On July 19, 2021, NameSilo, LLC confirmed by e-mail to the Forum that the <agiients.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 21, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 10, 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@agiients.com. Also on July 21, 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 12, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of the mark AGILENT registered, inter alia, in the USA for goods and services related to scientific research with first use recorded as 1999. It owns <agilent.com> and <agilents.com>.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s mark only substituting the letter ‘l’ with a letter ‘i’ and adding a letter ‘s’ and the gTLD “.com”.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for commercial pay per click links and for an e mail phishing scam using the Complainant’s mark spelt correctly and its logo and names of the Complainant’s employees. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith. Typosquatting is bad faith per se. The Respondent is the owner of a large number of domain names containing the intentional misspellings of well-known marks showing a pattern of bad faith activity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark AGILENT registered, inter alia, in the USA for goods and services related to scientific research with first use recorded as 1999. It owns <agilent.com> and <agilents.com>.
The Domain Name registered in 2021 has been used for a phishing e mail scam and commercial pay per click links. The Respondent is the owner of a large number of typosquatting domain names.
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”).
The Domain Name consists of a misspelled version of the Complainant's AGILENT mark (which is registered in USA for goods and services relating to scientific research with first use recorded as 1999) substituting a letter’ ‘I’ for the letter ‘i’, the letter ‘s’ and the gTLD “.com”. The Panel agrees that misspellings such as substitution or addition of a letter does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Coachella Music Festival LLC v. Domain Administrator/China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) and Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank’),
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the AGILENT mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has been used in a fraudulent e mail scam using the Complainant’s mark spelt correctly, its logo and the names of the Complainant’s employees. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’).
It is clear from the evidence that the Respondent has used the site attached to the Domain Name to link to commercial pay per link links. The usage of the Complainant’s mark which has a significant reputation in relation to scientific research services is not fair and the page attached to the Domain Name does not make it clear that there is no commercial connection with the Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v. domain admin / private registrations aktien Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of a complainant’s mark in a fraudulent e mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v. Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4(b)(iii)). Use of the Complainant’s mark spelt correctly, the Complainant’s logo and the names of the Complainant’s employees in the phishing scam shows the Respondent is aware of the Complainant and its business, rights and services.
Further the Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”). The Respondent also owns a large number of domain names consisting of misspelled versions of third party trademarks showing a pattern of this bad faith activity.
Respondent is using the Domain Name to point to pay per click links to make profit from promoting goods or services not associated with the Complainant in a disruptive and confusing manner. Additionally, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to competing websites by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site and goods or services offered on it under Policy 4 (b)(iv). See Capital One Financial Corp v. DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum June 4, 2015).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agiients.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 13, 2021
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