Qorvo US, Inc. v. Robin Bakke / NetxHost
Claim Number: FA2109001964690
Complainant is Qorvo US, Inc. (“Complainant”), represented by Tsan Abrahamson of Cobalt LLP, California, USA. Respondent is Robin Bakke / NetxHost (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <qorvous.com>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 22, 2021; the Forum received payment on September 22, 2021.
On September 22, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <qorvous.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 September 23, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 13, 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@qorvous.com. Also on September 23, 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 October 18, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a global leader in the integrated circuit industry, and produces numerous products, including amplifiers for wireless communications, semiconductors, and integrated circuit modules. Complainant serves customers throughout the US, and internationally, including Singapore, Costa Rica, China, Hong Kong, India, Japan, Korea, Malaysia, Taiwan, Belgium, Denmark, Finland, France, Germany, the Netherlands, the United Kingdom, and Vietnam. Complainant’s fiscal 2021 revenue was approximately $4.8 Billion. Complainant has rights in the QORVO mark based on its registration of the mark in the United States in 2015.
Complainant alleges that the disputed domain name is confusingly similar to its QORVO mark since it incorporates the mark in its entirety, merely adding the geographic descriptor “us” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant licensed or authorized Respondent to use the QORVO mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use because Respondent uses the disputed domain name to impersonate one of Complainant’s executives in a fraudulent email. Moreover, the resolving website displays unrelated advertising hyperlinks. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent attempts to defraud Complainant’s clients and divert funds from Complainant to Respondent’s bank account. Specifically, Respondent uses the domain name as an email address to send an email, featuring a proper signature line and a QORVO advertisement, to Complainant’s vendor. Moreover, Respondent had actual knowledge of Complainant’s rights in the QORVO mark, given Respondent’s specific attempt to defraud Complainant’s existing clients using Complainant’s own trademarks. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark QORVO dating back to 2014 and uses it to market electronic products.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that contains unrelated advertising links, and to impersonate one of Complainant’s executives in fraudulent emails.
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 disputed domain name incorporates Complainant’s mark in its entirety, merely adding the geographic descriptor “us” and the gTLD “.com.” Adding a geographic term and the gTLD “.com” to the domain name does not negate confusing similarity. See General Motors LLC v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, FA 1656166 (Forum Feb. 12, 2016) (finding respondent’s <gm-uzbekistan.com> domain name confusingly similar to complainant’s GM mark as the addition of the geographic term “uzbekistan” is inconsequential to a Policy ¶ 4(a)(i) analysis); see also Amazon Technologies, Inc. v. Ony Onv, FA2108001961664 (Forum Oct. 4, 2021) (“[T]he <blink-us.store> domain name is confusingly similar to Complainant’s BLINK mark under Policy ¶ 4(a)(i).”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its QORVO mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), when no response is submitted, relevant WHOIS information may demonstrate that a respondent is not commonly known by a disputed domain name. See Leidos, Inc. v. Mohamet Duc / MohamesBusiness, FA2108001960026 (Forum Sept. 23, 2021) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Mohamet Duc / MohamesBusiness” as the registrant of the domain name). Here, the WHOIS information identifies “Robin Bakke / NetxHost” as the registrant of the domain name. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent used the disputed domain name to impersonate one of Complainant’s executives in a fraudulent email; specifically, Complainant provides evidence showing that Respondent sent an email using the disputed domain name to one of Complainant’s vendors, where the signature block of the fraudulent email impersonated Complainant’s President and CEO. Moreover, the resolving webpage displays unrelated advertising hyperlinks. Use of a disputed domain name as an email to pass off as the complainant via email and to host unrelated hyperlinks on the resolving website does not constitute bona fide offerings of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see additionally Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”). Thus, the Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent used the disputed domain name to impersonate one of Complainant’s executives in a fraudulent email. Passing off as a complainant in order to send fraudulent emails is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Lone Star Global Acquisitions, Ltd. v. Genius Ingenuity / Genius Incorporated, FA2108001961224 (Forum Sept. 27, 2021) (finding that Respondent’s use of the disputed domain name to pose as an employee of Complainant and facilitate fraud demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iii) and (iv)); see also Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see additionally Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Further, also as already noted, the resolving website displays unrelated advertising links. Bad faith has been found even where a respondent has commercially benefited through links unrelated to a complainant’s mark. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv) on this ground also.
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the fraudulent emails displays the name of Complainant’s CEO, and Complainant’s mark and physical address. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <qorvous.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 18, 2021
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