Qurate Retail, Inc. v. soni kian / company corp
Claim Number: FA2201001982365
Complainant is Qurate Retail, Inc. (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is soni kian / company corp (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <qurateretail-vendor.com>, registered with Name.com, 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 January 28, 2022; the Forum received payment on January 28, 2022.
On January 30, 2022, Name.com, Inc. confirmed by e-mail to the Forum that the <qurateretail-vendor.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 February 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2022 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@qurateretail-vendor.com. Also on February 1, 2022, 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 February 27, 2022, 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, Qurate Retail, Inc., operates a Fortune 500 media conglomerate comprising multiple leading retail brands.
Complainant has rights in the QURATE RETAIL GROUP mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <qurateretail-vendor.com> domain name is confusingly similar to Complainant’s QURATE RETAIL GROUP mark, merely removing the term “group,” adding a hyphen and the generic term “vendor,” and appending the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <qurateretail-vendor.com> domain name as it is not commonly known by the at-issue domain name and is neither an authorized user nor licensee of the QURATE RETAIL GROUP mark. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services, nor for any noncommercial or fair use. Instead, Respondent uses the at-issue domain name to send fraudulent emails designed to enable Respondent’s illegitimate financial gain.
Respondent registered and uses the <qurateretail-vendor.com> domain name in bad faith. Respondent uses the domain name primarily for the purposes of passing off as Complainant to send fraudulent emails to phish for financial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in QURATE RETAIL GROUP.
Respondent is not affiliated with Complainant and is not authorized to use Complainant’s trademarks in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the QURATE RETAIL GROUP trademark.
Respondent uses the <qurateretail-vendor.com> domain name as part of an email phishing scheme to defraud third-parties.
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 USPTO trademark registration for QURATE RETAIL GROUP shows Complainant’s rights in mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <qurateretail-vendor.com> domain name contains a dominant part of Complainant’s trademark, less its space, followed by a hyphen and the term “vendor,” with all followed by the top-level domain name “.com.” The differences between Complainant’s trademark and Respondent’s domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). The Panel thus concludes that Respondent’s <qurateretail-vendor.com> domain name is confusingly similar to Complainant’s QURATE RETAIL GROUP trademark. See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”); see also VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) (finding that Respondent’s <vnymodels.com> domain name is confusingly similar to the VNY MODEL MANAGEMENT mark under Policy ¶ 4(a)(i).).
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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “soni kian / company corp” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <qurateretail-vendor.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <qurateretail-vendor.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Furthermore, Respondent uses the at-issue domain name to pass itself off as Complainant by sending email from the <qurateretail-vendor.com> domain name that pretends to be from Complainant. The email is sent in furtherance of an elaborate phishing scheme intent on using deceit to tender fake invoices and fake purchase orders to a factoring company and thereby bilk such company out of significant sums of money. Based on Respondent’s fraudulent activities the factoring company mistakenly paid Respondent significant sums to purchase non-existent receivables based on what were in fact bogus invoices. Respondent’s use of <qurateretail-vendor.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 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 without contrary evidence of record conclusively demonstrates Respondent’s lack of rights and lack of 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 described in more detail above regarding rights and legitimate interests, Respondent uses the at-issue domain name to pose 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 Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Ceridian HCM, Inc. v. Brandon Cohen, FA1912001874016 (Forum Jan. 2, 2020) (“Using a confusingly similar domain name to pass off as a complainant via fraudulent emails can evince bad faith under Policy ¶ 4(b)(iv)”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the QURATE RETAIL GROUP mark when it registered <qurateretail-vendor.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 perpetrate the email phishing scheme discussed elsewhere herein. Respondent’s registration and use of the <qurateretail-vendor.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 <qurateretail-vendor.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 28, 2022
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