Agilent Technologies, Inc. v. Kole Yewon, Yewon Hs
Claim Number: FA2204001990708
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, Colorado, USA. Respondent is Kole Yewon, Yewon Hs (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agilentjobs.careers>, 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 April 1, 2022; the Forum received payment on April 1, 2022.
On April 1, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <agilentjobs.careers> 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 April 4, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 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@agilentjobs.careers. Also on April 4, 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 May 2, 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.
A. Complainant
Complainant states that it provides a wide variety of goods and services in, inter alia, the life sciences, diagnostics, and the laboratory and scientific research industries. Complainant is a Fortune 500 company and world leader in the life sciences, diagnostics, and applied chemical markets. Complainant was formed in 1999 after its predecessor company, Hewlett-Packard, Inc., announced a strategic realignment to create Complainant as an independent measurement company composed of test and measurement components, life sciences and chemical analysis, electronics, and semiconductor and communications products. That “spin-off” of Hewlett-Packard in 1999 received significant media attention because, at the time, the $2.1 billion raised from this initial public offering (“IPO”) was the largest IPO in Silicon Valley history. Complainant currently provides laboratories worldwide with instruments, services, consumables, applications, and expertise and employs over 17,000 people worldwide serving customers in 110 countries, and serving approximately 265,000 laboratories, including major universities, hospitals, and research institutions globally. Complainant, through its domain name and corresponding website <agilent.com>, operates a robust online marketplace where its customers can choose from hundreds of different products which can be shipped to countries all over the world. Complainant’s revenues in 2021 exceeded $6.3 billion. Complainant asserts rights in the AGILENT mark through its registration of the mark in the United States in 2002. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is identical or confusingly similar to its AGILENT mark as it includes the mark in its entirety, merely adding the generic term “jobs” and the “.careers” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized or licensed Respondent to use the AGILENT mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website hosts parked pay-per-click third-party links, both related and unrelated to Complainant’s business. Additionally, Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme, trying to obtain personal information from unsuspecting Internet users. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the domain name in bad faith. Respondent attempts to attract users for commercial gain by hosting pay-per-click hyperlinks at the resolving website. Further, Respondent uses the domain name to engage in a phishing scheme. Finally, Respondent had actual notice of Complainant’s rights in the AGILENT mark, evidenced by the fame of the mark and Respondent’s use of the mark to engage in a fraudulent email phishing scheme. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark AGILENT uses it in connection with a wide variety of goods and services in, inter alia, the life sciences, diagnostics, and the laboratory and scientific research industries.
Complainant’s rights in its mark date back to at least 2002.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website displays parked pay-per-click advertising hyperlinks both related and unrelated to Complainant’s business. Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme; the fraudulent emails display Complainant’s mark, logo, and actual physical address.
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 AGILENT mark in its entirety, merely adding the generic term “jobs” and the “.careers” descriptive top-level domain. Simply adding a generic term and descriptive top-level domain is not sufficient to differentiate a disputed domain name from the mark. See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”). The Panel therefore finds that the <agilentjobs.careers> domain name is confusingly similar to Complainant’s AGILENT mark under 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: to determine whether a respondent is commonly known by a disputed domain name under Policy ¶ 4(c)(ii), the Panel may reference WHOIS information for the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information shows Respondent is known as “Kole Yewon, Yewon Hs”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website hosts a variety of third-party links, both related and unrelated to Complainant’s business. Using a disputed domain name to host a website with a parked website, hosting third-party links to competing and unrelated hyperlinks to complainant’s business, is not a bona fide offering of goods and services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows 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).”). Thus the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Further, Complainant provides evidence showing that Respondent uses the disputed domain name to engage in a fraudulent email phishing scheme. When a respondent uses a domain name in furtherance of a phishing scheme, the Panel may find that the respondent is not using the domain name in compliance with Policy ¶¶ 4(c)(i) or (iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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).”). Therefore, the Panel finds, on this ground also, that Respondent does not use the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
For all the above reasons, 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 uses the disputed domain name to attempt to attract users for commercial gain by hosting pay-per-click hyperlinks, both related and unrelated to Complainant’s business. A panel may find bad faith when the respondent uses a confusingly similar domain name to host pay-per-click links in order to attract users for its own commercial gain. See Plain Green, LLC v. wenqiang tang, FA1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). Therefore the Panel finds Respondent registered and is using the disputed domain name in bad faith within the meaning of Policy ¶ 4(b)(iv).
Further, also as already noted, Respondent uses the disputed domain name to engage in a fraudulent email phishing scheme. Past panels have agreed that using a domain name to fraudulently obtain personal and financial information from users may indicate a respondent acted in bad faith. 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).”). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the fraudulent emails display Complainant’s mark, logo, and actual 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 <agilentjobs.careers> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 3, 2022
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