Bechtel Group, Inc. v. UCY KAY
Claim Number: FA1509001636222
Complainant is Bechtel Group, Inc. (“Complainant”), represented by Mark A. Steiner of Duane Morris, LLP, California, USA. Respondent is UCY KAY (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bechtelglobal.com> ('the Domain Name') , registered with eNom, Inc.
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.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 2, 2015; the Forum received payment on September 2, 2015.
On September 4, 2015, eNom, Inc. confirmed by e-mail to the Forum that the 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 September 8, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 28, 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@bechtelglobal.com. Also on September 8, 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 October 2, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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
The Complainant's submissions can be summarised as follows:
Complainant is the owner of US trade mark registrations for the BECHTEL mark for construction, repair and modernisation of installations and apparatus and management services and publications related to the same which was first used in 1925. The mark was first registered in 1976. It is also the owner of US trade mark registrations for a globe logo containing the BECHTEL mark ('the Bechtel Logo') first registered in 1976 and first used in 1946.
The Domain Name, registered in 2015, is confusingly similar to the Complainant's BECHTEL mark and to the various domain names owned by the Complainant including bechtel.com. The Domain Name wholly incorporates the Complainant's mark and only adds the term 'global' which is descriptive of the global scope of the Complainant's company.
Respondent has compounded the deception and confusion by routing web traffic to the Domain Name to the Complainant's web site at bechtel.com. Direct fraudulent e mails have been sent using the Domain Name purporting to be from the Complainant's real manager of human resources offering job offers which are headed with the Bechtel Logo from a seemingly official address, but which are fraudulent and have not been sent by anyone from the Complainant's business.
Complainant has not given consent to the Respondent to use its mark in this fraudulent manner. Respondent is not offering any bona fide goods and services of its own but is simply using the Domain Name to deceive individuals that it is the Complainant or its affiliate and obtain personal information. This use shows the Respondent has no rights or legitimate interest in the Domain Name and the Domain Name has been registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of US trade mark registrations for the BECHTEL mark for construction, repair and modernisation of installations and apparatus and management services and publications related to the same which was first used in 1925. The mark was first registered in 1976. It is also the owner of US trade mark registrations for the Bechtel Logo, first registered in 1976 and first used in 1946.
The Domain Name was registered in 2015. Direct fraudulent e mails have been sent using the Domain Name to third party individuals purporting to be from the Complainant's real manager of human resources offering job offers which are headed with the Bechtel Logo from a seemingly official address, but which are fraudulent and have not been sent by anyone from the Complainant's business.
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.”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's BECHTEL mark, the generic term 'global' and the gTLD .com.
Prior panels have found that adding a generic term does little to remove confusing similarity from a disputed mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v Healy/BOSTH D2001-0026 (WIPO Mar 23, 2001)(Finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term.)
The gTLD .com does not serve to distinguish the Domain Name from the CAPITAL ONE mark, which is the distinctive component of the Domain Names. See Red Hat Inc. v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Complainant maintains that the Respondent is not using the Domain Name to offer bona fide goods and services and has no permission from the Complainant to use its mark.
Respondent is using the Domain Name to deceive Internet users seeking employment with the Complainant for pecuniary gain in that the Respondent seeks to obtain the personal information of those individuals, conduct known as 'Phishing'. Prior panels have found that 'phishing' is not bona fide offering of goods and services under Policy 4 (c)(i) See Blackstone TM LLC 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) not a legitimate non-commercial or fair use pursuant to Policy 4 (c) (iii).
As such the Panel finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
The Domain Name is being used to gather information from individuals using the Complainant's mark. The Respondent is clearly passing itself off as the Complainant for this purpose using the Bechtel Logo on job offers to deceive. The panel finds the use of the Domain Name is confusing and deceptive and has been used for a phishing scam. See Capital FIn. Corp. & Capital One Bank v Howel FA 289304 (Nat. Arb, Forum Aug. 11, 2003) (Holding that as the capitalonebank.biz domain name was confusingly similar to Complainant’s mark, it was being used to acquire personal information from Complainant’s clients constituting bad faith registration and use. ) See Wells Fargo & Co. v Maniac State FA 608239 (Nat. Arb. Forum Jan 19, 2006)(Finding bad faith registration and use where respondent was using the wellsbankupdate.com domain name in order to to fraudulently acquire the personal and financial information of the Complainant’s customers.)
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bechtelglobal.com> domain name be TRANSFERRED from Respondent to Complainant. .
<<Dawn Osborne>>, Panelist
Dated: <<October 14, 2015>>
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