national arbitration forum

 

DECISION

 

Red Hat, Inc. v. Ravneet Ahluwalia

Claim Number: FA1202001428646

 

PARTIES

Complainant is Red Hat, Inc. (“Complainant”), represented by Amy E. Salomon of Arent Fox LLP, Washington, D.C., USA.  Respondent is Ravneet Ahluwalia (“Respondent”), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <redhat.co>, registered with Enom, Inc.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2012; the National Arbitration Forum received payment on February 8, 2012.

 

On February 8, 2012, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <redhat.co> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name.  Enom, Inc. has verified that Respondent is bound by the Enom, 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 9, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 29, 2012 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@redhat.co.  Also on February 9, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On March 7, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.

 

Respondent submitted a late response, which was not considered by the Panel.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.    Respondent’s <redhat.co> domain name is identical to Complainant’s RED HAT mark.

 

2.    Respondent does not have any rights or legitimate interests in the <redhat.co> domain name.

 

3.    Respondent registered and used the <redhat.co> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Red Hat, Inc., uses the RED HAT mark in connection with computer software and programs.  Complainant owns several trademark registrations with the United States Patent and Trademark Office ("USPTO") for its RED HAT mark (e.g., Reg. No. 2,142,662 registered March 19, 1998).  Complainant also owns several trademark registrations with the India Controller General of Patents Designs and Trademarks (“CGPDTM”) for the RED HAT mark (e.g., Reg. No. 874,613 registered February 9, 1999).  Complainant also operates under <redhat.com>.

 

Respondent, Ravneet Ahluwalia, registered the <redhat.co> domain name on July 20, 2010.  Respondent’s domain name resolves to a forum website containing information and services related to Complainant’s software and programming. 

 

DISCUSSION

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."

 

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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory.  See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

 

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has established rights in its RED HAT mark through its various trademark registrations that it owns with the USPTO with the CGPDTM.  Having received the registration certificates into evidence, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.  See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world); see also Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i)).

 

Respondent’s <redhat.co> domain name features Complainant’s entire RED HAT mark, merely deletes the space between the terms, and adds the country-code top-level domain (“ccTLD”) “.co,” both immaterial when analyzing ICANN Policy ¶ 4(a)(i).  Thus, the Panel finds that the <redhat.co> domain name is identical to Complainant’s RED HAT mark under Policy ¶ 4(a)(i).  See West Publ’g Corp. v. Korey COO, FA 1420064 (Nat. Arb. Forum Feb. 3, 2012) (finding that the “<superlawyers.co> domain name is identical to Complainant’s SUPER LAWYERS mark under Policy ¶ 4(a)(i) because spaces are not allowed in a domain name and a top-level domain is required”); see also Ruth’s Hospitality Group, Inc. v. Domain Manager, FA 1408733 (Nat. Arb. Forum Nov. 3, 2011) (finding that the <ruthschris.co> domain name is confusingly similar to Complainant’s RUTH’S CHRIS mark under Policy ¶ 4(a)(i)).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant argues that Respondent does not have rights or legitimate interests in the <redhat.co> domain name under Policy ¶ 4(a)(ii).  Policy ¶ 4(a)(ii) requires Complainant to first establish a prima facie case to support its allegations.  Once Complainant submits a prima facie case the burden of proof shifts to Respondent.  See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)).  Due to Respondent’s failure to submit a Response in this case, the Panel may find Complainant’s allegations to be true unless contradicted by the evidence on record.  See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”).  The Panel will evaluate the evidence on record in making its determinations under Policy ¶ 4(c). 

 

Complainant first contends that Respondent does not own any trademark or service mark rights encompassing the domain name or a similar version of the domain name.  Complainant also asserts that it has not licensed, sublicensed, contracted, franchised, permitted, or otherwise authorized Respondent to use the RED HAT mark.  The Panel notes that the WHOIS information identifies “Ravneet Ahluwalia” as the domain name registrant, which the Panel finds to be dissimilar to the disputed domain name.  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).  See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. 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 disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).

 

Complainant asserts that Respondent is using the <redhat.co> domain name to resolve to a forum website containing “information on computer software and related goods and services, including information on technical support for Complainant’s RED HAT software and highly-specialized Linux software that is distributed by Complainant.”  Further, Complainant contends that Respondent is also using the domain name in connection with a fraudulent “webmail login page that is virtually identical to Complainant’s genuine website login page.”  Complainant argues that this “webmail” feature through Respondent’s website attempts to “phish” for Complainant’s employee names and passwords among those that mistype “.co” instead of “.com” from Complainant’s <redhat.com> domain name.  Complainant’s evidence shows that Respondent’s website is an attempt by Respondent to copy the look and feel of Complainant’s official website.  The Panel also notes that the forum section of Respondent’s website does not contain any postings of substantive value.  Therefore, the Panel finds that Respondent is attempting to confuse Complainant’s employees into entering their username and password into Respondent’s fraudulent webmail login page in order to obtain such information for its own use.  The Panel finds that neither of these uses constitute 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).  See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).

 

Complainant also contends that Respondent has listed the disputed domain name for sale through the online domain name auction service located at <sedo.com>.  Prior panels have found that a respondent’s auctioning of the disputed domain name is evidence of respondent’s lack of rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii).  See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“UDRP precedent is clear that auctioning domains does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of domains.”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).  The Panel agrees and finds accordingly.

 

Lastly, Complainant contends that Respondent’s registration and use of the <redhat.co> domain name is an example of typosquatting.  Complainant asserts that Respondent is clearly attempting to typosquat on the RED HAT mark and the <redhat.com> domain name that Complainant owns by removing the letter “m” from the “.com” of Complainant’s official website.  The Panel agrees with Complainant and finds that Respondent has engaged in typosquatting through its registration of the <redhat.co> domain name, and that typosquatting is evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).  See AccountNow, Inc. v. ME New Enterprise, FA 1417493 (Nat. Arb. Forum Jan. 17, 2012) (finding that Respondent did not have rights and legitimate interests in the <accountnow.co> domain name where Respondent was capitalizing on the misspelling of “.com.”); see also Teavana Corp v. Lee Sam Lee Sam, FA 1419368 (Nat. Arb. Forum Feb. 22, 2012) (finding that removing the letter “m” from the “.com” suffix is evidence of a respondent’s lack of rights and legitimate interests as it constitutes typosquatting). 

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent has listed the disputed domain name for sale through the online auction website <sedo.com>, evidence of bad faith under Policy ¶ 4(b)(i).  See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale); see also Wrenchead.com, Inc. v. Hammersla, D2000-1222 (WIPO Dec. 12, 2000) (finding that offering the domain name for sale at an auction site is evidence of bad faith registration and use).

 

Respondent registered and is using the domain name to attempt to fraudulently acquire the username and passwords of Complainant’s employees webmail accounts through the act of phishing, evidence of bad faith registration and use under Policy ¶ 4(a)(iii).  See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant’s website and was used to fraudulently acquire personal information from the complainant’s potential associates). 

 

The Panel finds that the act of typosquatting is also evidence of Respondent’s bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii).  See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. 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)); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).

 

Based on the content at the website resolving from the disputed domain name, the Panel finds that Respondent had actual knowledge of Complainant's rights in its RED HAT mark prior to registering the disputed domain name and finds that actual knowledge is additional evidence of bad faith under Policy ¶ 4(a)(iii).  See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. 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 Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <redhat.co> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated:  March 14, 2012

 

 

 

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