Cognizant Technology Solutions U.S. Corporation v. CARL FURSTENBERG
Claim Number: FA1410001583066
Complainant is Cognizant Technology Solutions U.S. Corporation (“Complain-ant”), represented by David M. Kramer of DLA Piper LLP (US), District of Columbia. Respondent is CARL FURSTENBERG (“Respondent”), New Mexico.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cognizants.net>, registered with ENOM, INC..
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on October 2, 2014; the National Arbitration Forum received payment on October 2, 2014.
On October 3, 2014, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <cognizants.net> 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 accord-ance with ICANN’s Uniform Domain Name Dispute Resolution Policy (“Policy”).
On October 6, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 27, 2014 by which Respondent could file a Response to the Complaint, via e-mail to all enti-ties and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@cognizants.net. Also on October 6, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respond-ent via post and fax, to all entities and persons listed on Respondent’s registra-tion 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 November 5, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the COGNIZANT mark in the operation and marketing of its business as a consulting and business process outsourcing company.
Complainant holds registrations for the COGNIZANT trademark, which are on file with the United States Patent and Trademark office (“USPTO”) (including Regis-try No. 2,498,530, registered January 4, 1996).
Respondent registered the <cognizants.net> domain name on August 25, 2014.
The domain name is confusingly similar to Complainant’s COGNIZANT mark.
Respondent has not been commonly known by the domain name.
Respondent is neither licensed nor otherwise authorized by Complainant to use the COGNIZANT mark.
Respondent does not employ the domain name to provide any bona fide offering of goods or services or to make a legitimate noncommercial or fair use.
Respondent uses the domain name to redirect Internet users, as part of a phish-ing scheme, to its own website where, for its commercial gain, Respondent presents fake job offers for positions of employment with Complainant.
Respondent lacks rights to or legitimate interests in the domain name.
Respondent knew of Complainant and its rights in the COGNIZANT mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the COGNIZANT service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that, where a UDRP complainant submitted evidence of its regis-tration of a mark with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i)”).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that the <cognizants.net> domain name is confusingly similar to Complainant’s COGNIZANT service mark. The domain name contains the mark in its entirety, adding only the letter “s” and the generic top-level domain (“gTLD”) “.net.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding, under Policy ¶ 4(a)(i), that the addition of the letter “s” and of generic top-level domains to the mark of a UDRP complainant in creating the <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid a finding of confusing similarity as between the domain names and that complainant’s BARNESANDNOBLE.COM mark).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the <cognizants.net> domain name, and that Respondent is not licensed or otherwise authorized by Complain-ant to use the COGNIZANT mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Carl Furstenberg,” which does not resemble the domain name. On this record, we must conclude that Re-spondent has not been commonly known by the <cognizants.net> domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See, for example, Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003):
Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <cognizants.net> domain name to redirect Internet users to its own website where, as part of a phishing scheme and for commercial gain, Respondent presents fake job offers for positions of employment with Com-plainant. This use of the domain name is neither a bona fide offering of goods or services or a legitimate noncom-mercial or fair use of the domain name. See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (find-ing that a respondent’s use of a domain name fraudulently to acquire the per-sonal and financial information of Internet users seeking a UDRP complainant’s financial services was neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii)).
Therefore, the Panel finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the <cognizants.net> domain name to profit from the fraudulent operation of a resolving website, all as described in the Complaint. Under Policy ¶ 4(b)(iv), this use of the domain name stands as proof of Respondent’s bad faith in its registration and use. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where a respondent diverted to its own website Internet users searching for the website of a UDRP complainant, likely profiting in the process).
As well, we are convinced by the evidence that Respondent knew of Complain-ant and its rights in the COGNIZANT service mark when it registered the <cognizants.net> domain name. This too demonstrates Respondent’s bad faith in the registration and use of the domain name. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where a respondent was "well-aware of” a UDRP complainant's YAHOO! mark at the time of its regis-tration of a confusingly similar domain name).
Finally under this head of the Policy, it is plain from the undenied allegations of the Complaint that Respondent uses the <cognizants.net> domain name to facil-itate the operation of a fraudulent phishing scheme, which is further evidence of bad faith in the registration and use of the domain name. See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that a UDRP respondent demonstrated bad faith in the registration and use of a contested domain name where it employed that domain name in an attempt to acquire the personal and financial information of Internet users).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <cognizants.net> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 6, 2014
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