Hendrickson USA, L.L.C. v. john carl / Agricol Pro LLC
Claim Number: FA2202001984653
Complainant is Hendrickson USA, L.L.C. ("Complainant"), represented by Jason A. Pittman of Dority & Manning, P.A., South Carolina, USA. Respondent is john carl / Agricol Pro LLC ("Respondent"), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hendrickson-lntl.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 16, 2022; the Forum received payment on February 16, 2022.
On February 18, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <hendrickson-lntl.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 18, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 10, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@hendrickson-lntl.com. Also on February 18, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 March 16, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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, together with its parent and affiliated companies, manufactures and supplies suspension components and systems for truck and trailer manufacturers in North America and around the world. Complainant has used the HENDRICKSON trademark in connection with its goods and services since at least as early as 1913. Complainant owns a longstanding United States trademark registration for HENDRICKSON in standard character form. Complainant also owns and uses the domain name <hendrickson-intl.com>.
Respondent registered the disputed domain name <hendrickson-lntl.com> in January 2022. Complainant characterizes the disputed domain name as a instance of typosquatting, noting its similarity to Complainant's domain name and the similar appearance of a lower case "L" and a capital "I." Complainant also questions the registration data provided by Respondent, noting that the address appears to be a college dorm room in New York, and that there is no entity registered as a limited liability company in New York under the name "Agripol Pro." (The Panel notes also that the telephone number in Respondent's registration data appears to be invalid.)
Complainant alleges, with supporting evidence, that the disputed domain name has been used to impersonate Complainant in fraudulent email messages attempting to divert payments intended for Complainant. Complainant states that Respondent is not commonly known by the disputed domain name, is not a licensee of Complainant, and has not been authorized or permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <hendrickson-lntl.com> is confusingly similar to its HENDRICKSON mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <hendrickson-lntl.com> incorporates Complainant's registered HENDRICKSON trademark, adding a hyphen, a misspelled version of the generic abbreviation "intl" (for "international"), and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Tower Automotive Operations USA I, LLC v. April Braddock / Tower lnternatlonal, FA 1754300 (Forum Nov. 27, 2017) (finding <towerlnternatlonal.com> confusingly similar to TOWER INTERNATIONAL); Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA 1550388 (Forum May 5, 2014) (finding <cubist-intl.com> confusingly similar to CUBIST). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to impersonate Complainant in email messages in connection with a fraudulent scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Alliant Energy Corp. v. Sammy Willy / Alliant Energy, FA 1984261 (Forum Mar. 14, 2022) (finding lack of rights or interests in similar circumstances); Tower Automotive Operations USA I, LLC v. April Braddock / Tower lnternatlonal, supra (same); Cubist Pharmaceuticals, Inc. v. Gregory Stea, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used what appears to be fictitious registration data to register a domain name incorporating Complainant's mark and a typographical error, and used the domain name to impersonate Complainant in connection with a fraudulent scheme. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Alliant Energy Corp. v. Sammy Willy / Alliant Energy, supra (finding bad faith registration and use in similar circumstances); Tower Automotive Operations USA I, LLC v. April Braddock / Tower lnternatlonal, supra (same); Cubist Pharmaceuticals, Inc. v. Gregory Stea, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hendrickson-lntl.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 16, 2022
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