Agilent Technologies, Inc. v. Ini obong
Claim Number: FA2111001974115
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Winfield B. Martin of Perkins Coie LLP, Washington, USA. Respondent is Ini obong (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agilenttechnologiesinc.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 19, 2021; the Forum received payment on November 19, 2021.
On November 19, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <agilenttechnologiesinc.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. 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 November 23, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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@agilenttechnologiesinc.com. Also on November 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 December 16, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant conducts business in the areas of life sciences, diagnostics, and in the laboratory and scientific research industries.
Complainant has rights in the AGILENT TECHNOLOGIES mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <agilenttechnologiesinc.com> domain name is confusingly similar to Complainant’s AGILENT TECHNOLOGY mark. Respondent incorporates the mark in its entirety and adds the generic term “inc” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <agilenttechnologiesinc.com> domain name as Respondent is not commonly known by the at-issue domain name nor did Complainant authorize Respondent to use the AGILENT TECHNOLOGIES marks in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to pass itself off as Complainant by offering similar products and services and then engaging in a phishing scheme to defraud third parties.
Respondent registered and used the <agilenttechnologiesinc.com> domain names in bad faith as Respondent attempts to pass off as Complainant by offering similar products and services and engaging in a phishing scheme. Respondent had actual knowledge of Complainant’s rights in the AGILENT TECHNOLOGIES mark due to the fame and long standing use of the mark in commerce and from its use of the domain name to pose as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the AGILENT TECHNOLOGY mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the AGILENT TECHNOLOGY trademark.
Respondent uses the at-issue domain name to impersonate Complainant and defraud third parties via an email phishing scheme and to offer products and service related to Complainant.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of its AGILENT TECHNOLOGIES mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <agilenttechnologiesinc.com> domain name incorporates Complainant’s AGILENT TECHNOLOGY trademark less its space, followed by the generic term “inc” and with all followed by the generic top-level domain name “.com.” The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish the domain name from Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <agilenttechnologiesinc.com> domain name is confusingly similar to Complainant’s AGILENT TECHNOLOGY trademark pursuant to Policy ¶ 4(a)(i). See Starbucks Corporation d/b/a Starbucks Coffee Company v. Waseem A Ali / Micron Web Services, FA 1785616 (Forum June 8, 2018) (finding the <starbucksreal.com> domain name to be confusingly similar to the STARBUCKS mark, as “the addition of the generic term ‘real’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.”), see also, MTD Products Inc v. Mike Kernea / Skyline, FA 1775278 (Forum Apr. 19, 2018) (“The mere addition of a gTLD is inconsequential and does not avoid a finding of identity.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Ini obong” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <agilenttechnologiesinc.com> domain name, or by AGILENT TECHNOLOGY. The Panel therefore concludes that Respondent is not commonly known by the <agilenttechnologiesinc.com> domain name for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”).
Additionally, Respondent uses the <agilenttechnologiesinc.com> domain name to address a webpage presenting pay-per-click links to products and services similar to those offered by Complainant. Respondent also uses the at-issue domain name to pass itself off as Complainant by sending email from the domain name that pretends to be from Complainant. The email is sent in furtherance of a phishing scheme intent on using deceit to gather private financial information and trick thirds parties into turning funds or products over to Respondent. Respondent’s use of <agilenttechnologiesinc.com> in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”); 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)).
Given the forgoing, Complainant satisfies its initial burden and additionally conclusively demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and legitimate interests, Respondent uses the at-issue domain name to offer pay-per-click links to products and services in competition with Complainant and to pass itself off as Complainant in connection with an email phishing scheme. Respondent’s use of <agilenttechnologiesinc.com> thus indicates Respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”), 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 also, SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA14009001581255 (Forum Oct. 29, 2014) (“The Panel finds that Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the AGILENT TECHNOLOGY mark when it registered <agilenttechnologiesinc.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to pose as Complainant to promote an email phishing scheme as discussed elsewhere herein. Respondent’s registration and use of the <agilenttechnologiesinc.com> domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agilenttechnologiesinc.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 17, 2021
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