Adobe Inc. v. eric lance
Claim Number: FA2202001985870
Complainant is Adobe Inc. (“Complainant”), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia, USA. Respondent is eric lance (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adobe-mailer.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 February 25, 2022; the Forum received payment on February 25, 2022.
On February 25, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <adobe-mailer.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 February 28, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 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@adobe-mailer.com. Also on February 28, 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. An entity whose address is the one listed for Respondent in the WHOIS did however send an email to the Forum, see below.
On March 23, 2022, 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.
An entity that is not a party to the instant dispute sent an email to the Forum stating, in pertinent part: “The attached [UDRP Complaint] was sent to our corporate headquarters but address to an Eric Lance [the named Respondent]. I am not sure why it was sent to us as we are not named as a defendant. We don’t even have a record of him ever being employed by any of our entities.”
A. Complainant
Complainant states that it provides computer software, including for mass mailing, and related services. Complainant has rights in the ADOBE mark based upon its registration in the United States in 1988. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is confusingly similar to its ADOBE mark because the disputed domain name incorporates the entire mark and merely adds the generic or descriptive word “mailer,” a hyphen, and the “.com” generic top level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s ADOBE mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because the disputed domain resolves to a parked webpage that displays advertising links to products that compete with those of Complainant. Finally, Respondent’s use of the domain in a phishing scheme further indicates that Respondent lacks rights or legitimate interests in the domain. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to host a parked page with competing hyperlinks and as part of a phishing scheme. In addition, Respondent had actual knowledge of Complainant’s rights in the ADOBE mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ADOBE uses it to market computer products and services. The mark is famous.
Complainant’s rights in its mark date back to 1988.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving displays parked pay-per-click advertising hyperlinks to products that compete with those of Complainant. The disputed domain name is used in furtherance of an email phishing scheme. The WHOIS information is false.
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 ADOBE mark in its entirety and merely adds the generic/descriptive term “mailer”, a hyphen, and the “.com” gTLD. Under Policy ¶ 4(a)(i), adding a generic word and a hyphen to a mark does not create a sufficient distinction between the mark and the domain name. 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.”). Therefore the Panel find that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under 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.”). Here, the WHOIS information lists the registrant of the disputed domain name as “eric lance”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website displays parked pay-per-click advertising hyperlinks to products that compete with those of Complainant. Under Policy ¶¶ 4(c)(i) and (iii), past panels have found no bona fide offering of goods or services, nor any legitimate noncommercial or fair use where the disputed domain name resolves to a parked page. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Further, respondent uses the disputed domain name domain in furtherance of an email phishing scheme. Specifically, Complainant provides evidence that Respondent uses the disputed domain name to send emails to businesses seeking personal and financial information, including customer email addresses and phone numbers, as well as account information. This further indicates a lack of rights or legitimate interests. See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Therefore, on this ground also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
For all the above reasons, the Panel finds that Respondent lacks 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, the resolving website displays parked pay-per-click advertising hyperlinks to competing products. This is evidence of bad faith per Policy ¶ 4(b)(iv). See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Therefore the Panel finds that Respondent has registered and uses the disputed domain in bad faith under Policy ¶ 4(b)(iv).
Further, the disputed domain name is used in furtherance of an email phishing scheme. This is evidence of bad faith per Policy ¶ 4(a)(iii). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”). Therefore the Panel finds that Respondent registered and uses the disputed domain in bad faith under Policy ¶ 4(a)(iii).
Finally, the Panel notes that the WHOIS information is incorrect: the entity whose address is the one specified by Respondent in the WHOIS states that it never heard of Respondent. This can indicate bad faith registration and use. See Enterprise Holdings, Inc. v. John Doe, FA1008001339545 (Forum Sept. 29, 2010) (“The Panel also takes into account that the entity that Responded to the Complaint would not be the registrant of the disputed domain names for the instant proceedings. Therefore, that circumstance is also taken by the Panel as indication of bad faith under Policy ¶ 4(a)(iii) by providing false or misleading WHOIS information to the registrar.”); see also Video Direct Distribs. Inc. v. Video Direct, Inc., FA 94724 (Forum June 5, 2000) (finding that the respondent acted in bad faith by providing incorrect information to the registrar regarding the owner of the registered name). Accordingly, the Panel finds bad faith registration and use on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <adobe-mailer.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 24, 2022
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