Textron Innovations Inc. v. mike hanz / mike hanz inc
Claim Number: FA1506001622930
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick of Continental Enterprises, Indiana, USA. Respondent is mike hanz / mike hanz inc (“Respondent”), Ghana.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <text-ron.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 5, 2015; the Forum received payment on June 5, 2015.
On June 6, 2015, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <text-ron.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 June 9, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 29, 2015 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@text-ron.com. Also on June 9, 2015, 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 July 7, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Textron Innovations Inc., is a multi-industry company with global brands in transportation. Complainant has registered the TEXTRON mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,090,704, registered May 9, 1978). The mark is used on or in connection with the sale of automobile and other motor-related parts. The <text-ron.com> domain name is confusingly similar to the TEXTRON mark because the domain name contains the entire mark and differs only by the insertion of a hyphen and the addition of the gTLD “.com.”
Respondent has no rights or legitimate interests. Respondent is not commonly known as the disputed domain name, nor is Respondent a licensee of Complainant. Further, the domain name resolves to a blank webpage, and Respondent has created a series of email addresses ending in “@text-ron.com” for the purposes of running a phishing scam.
Respondent has engaged in bad faith registration and use. Respondent is disrupting Complainant’s business and attempting to commercially benefit from a likelihood of confusion through its use of the email addresses and phishing scam. Also, Respondent had actual and/or constructive knowledge of Complainant’s trademark rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Textron Innovations Inc., is a multi-industry company with global brands in transportation. Complainant has registered the TEXTRON mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,090,704, registered May 9, 1978). The mark is used on or in connection with the sale of automobile and other motor-related parts.
Respondent, mike hanz / mike hanz inc, registered the <text-ron.com> domain name on September 22, 2014. The domain name resolves to a blank webpage, and Respondent has created a series of email addresses ending in “@text-ron.com” for the purposes of running a phishing scam.
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(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.”).
Complainant has rights in the TEXTRON mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <text-ron.com> domain name is confusingly similar to Complainant’s TEXTRON mark under Policy ¶ 4(a)(i). The domain name contains the entire mark and differs only by the insertion of a hyphen and the addition of the gTLD “.com.” See Teradyne, Inc. v. 4Tel Tech., D2000-0026 (WIPO May 9, 2000) (finding that the “addition of a hyphen to the registered mark is an insubstantial change. Both the mark and the domain name would be pronounced in the identical fashion, by eliminating the hyphen").
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Respondent is not commonly known as the <text-ron.com> domain name under Policy ¶ 4(c)(ii). Complainant has not licensed or authorized Respondent to use the TEXTRON mark. The WHOIS information lists “mike hanz” as the registrant of record. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent’s use of the <text-ron.com> domain name is not 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). Respondent has failed to use the domain name, and that Respondent has created a series of email addresses ending in “@text-ron.com” for the purposes of running a phishing scam. The email addresses are used to impersonate Complainant’s employees and send fraudulent emails to third parties with whom Complainant does business. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii) by disrupting Complainant’s business through a phishing scheme. See SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA 1581255 (Nat. Arb. Forum Oct. 29, 2014) (“Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”); see also Zillow, Inc. v. Ryan G Foo / PPA Media Services FA 1502001604451 (Nat. Arb. Forum March 19, 2015) (“This use of a domain name for phishing disrupts the business of Complainant within the meaning of Policy ¶ 4(b)(iii) and is evidence of bad faith registration and subsequently of bad faith use.”).
Respondent had actual knowledge of Complainant's rights in the TEXTRON mark. Therefore, Respondent registered the <text-ron.com> domain name in bad faith under Policy ¶ 4(a)(iii). See also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the Complainant's YAHOO! mark at the time of registration . . . .”).
Respondent has failed to make an active use of the <text-ron.com> domain name. Therefore, Respondent registered the domain name in bad faith under Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <text-ron.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 21, 2015
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