Agilent Technologies, Inc. v. Huang feng
Claim Number: FA2208002007753
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, Colorado, USA. Respondent is Huang feng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agielnt.com>, registered with Gname 050 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 August 9, 2022; the Forum received payment on August 9, 2022.
On August 12, 2022, Gname 050 Inc confirmed by e-mail to the Forum that the <agielnt.com> domain name is registered with Gname 050 Inc and that Respondent is the current registrant of the name. Gname 050 Inc has verified that Respondent is bound by the Gname 050 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 August 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 6, 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@agielnt.com. Also on August 15, 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 September 13, 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 is a California-based life sciences technology company.
Complainant claims rights in the AGILENT mark through registration with the United States Patent and Trademark Office (“USPTO”).
The at-issue domain name <agielnt.com> is confusingly similar because it differs from the AGILENT mark only through an intentional misspelling of the AGILENT mark, with the addition of the “.gtld” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <agielnt.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized Respondent to use the AGILENT mark in any way. Additionally, Respondent fails to use the at-issue domain name in connection with make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the at-issue domain name to host adult-oriented content. Furthermore, Respondent uses the domain name to host third-party pay-per-click links.
Respondent registered and used the at-issue domain in bad faith. Respondent has a history registering well-known trademarks in domain names to address pornography. Furthermore, Respondent had actual knowledge of Complainant’s rights in the AGILENT mark prior to registration of the at-issue domain. Respondent also uses the <agielnt.com> domain name to host adult-oriented material. Finally, Respondent is engaging in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the AGILENT trademark.
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 names after Complainant acquired rights in the AGILENT trademark
Respondent uses the at-issue domain name to host adult-oriented material and pornography as well as facilitating pay-per-click links to 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 shows that it has a USPTO registration along with multiple other national trademark registrations for its AGILENT trademark. Any of such registrations is sufficient to demonstrate Complainant’s rights in the AGILENT mark under Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
Respondent’s <agielnt.com> domain name consists of an overtly misspelled version of Complainant’s AGILENT trademark where the mark’s “l” and “e” are transposed, with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel concludes that Respondent’s <agielnt.com> domain name is confusingly similar to AGILENT pursuant to Policy ¶ 4(a)(i). See Western Alliance Bancorporation v. James Brandon, FA 1783001 (Forum June 5, 2018) (“Respondent’s <westernalliancebcorporation.info>domain name is confusingly similar to Complainant’s WESTERN ALLIANCE BANCORPORATION mark because it merely appends the gTLD ‘.info’ to a misspelled version of Complainant’s mark.”).
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 “Huang feng” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <agielnt.com> domain name or by AGILENT. The Panel therefore concludes that Respondent is not commonly known by <agielnt.com> 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, Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Additionally, Respondent uses the confusingly similar <agielnt.com> domain name to address a website that hosts pornography and promotes pay-per-click links to third parties. Respondent’s use of the domain name 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 Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”).
Given the forgoing, Complainant satisfies its initial burden and 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 are circumstances present that allow the Panel to conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent has registered numerous domain names which target other famous brands by incorporating intentional misspellings of well-known third-party trademarks. Respondent’s pattern of cybersquatting suggests Respondent’s bad faith regarding the instant dispute pursuant to Policy ¶ 4(b)(ii). See Lufkin Indus., LLC v. Marco, FA 1915192 (Forum Nov. 4, 2020) (finding bad faith where a reverse WHOIS search revealed that respondent had registered numerous domain names, some of which contain famous trademarks owned by third parties; “[a] respondent may be found to have established a pattern of bad faith registrations when the respondent registers numerous domain names that incorporate other trademarks under Policy ¶ 4(b)(ii)”).
Next, Respondent uses the confusingly similar <agielnt.com> domain to attract internet users to Respondent’s <agielnt.com> website for commercial gain by creating confusion between the domain name and Complainant’s trademark. Respondent’s use of <agielnt.com> to imply an affiliation with Complainant and then offer pornographic content via the domain name’s associated website indicates Respondent’s bad faith registration and use of the <agielnt.com> domain name. See Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also, Google Inc. v. Bassano, FA 232958 (Forum Mar. 8, 2004) (holding that the respondent’s use of the <googlesex.info> domain name to intentionally attract Internet users to a website featuring adult-oriented content constituted bad faith registration and use under Policy ¶ 4(b)(iv)); see also Toshiba v. ran jiangfei, FA1797650 (Forum Aug. 22, 2018) (holding respondent’s registration and use of the domain names <toshiba-gulf.com> and <driversoftoshiba.com> for pornographic websites constitutes bad faith under UDRP 4(b)(iv)).
Respondent also engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name. The registrant hopes that internet users will inadvertently type the malformed string when searching for content related to the domain name’s target trademark and/or upon reading the domain name will overlook the misspelling and subsequently believe the domain name is related to, or sponsored by, the domain name’s target trademark. In the instant case, Respondent swaps the “l” and “e” in Complainant’s mark and incorporates the misspelling into the at-issue domain name. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the AGILENT mark when it registered <agielnt.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s AGILENT trademark and from the overt misspelling of Complainant’s trademark in the at-issue domain name. Respondent’s registration and use of the at-issue domain name with knowledge of Complainant’s rights in AGILENT and thus in <agielnt.com> 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 <agielnt.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 14, 2022
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