AB Sciex Pte. Ltd. v. Kelli R Wimmet
Claim Number: FA1610001698187
Complainant is AB Sciex Pte. Ltd. (“Complainant”), represented by Julia Anne Matheson of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., District of Columbia, USA. Respondent is Kelli R Wimmet (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sceix.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 14, 2016; the Forum received payment on October 14, 2016.
On October 18, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <sceix.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 October 18, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 7, 2016 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@sceix.com. Also on October 18, 2016, 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 November 8, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 has rights in the SCIEX mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,195,033, registered on May 11, 1982) and appropriately renewed with the USPTO. Respondent’s <sceix.com> domain name is confusingly similar to the SCIEX mark because it contains the mark with transposed letters “e” and “i,” along with the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the <sceix.com> disputed domain name as the available WHOIS information lists “Kelli R Wimmet” as Registrant and Respondent is not authorized to use the SCIEX mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the disputed domain name is used to host a fraudulent e-mail address used to target and defraud Complainant and customers of Complainant while the resolving website is inactive. Further, Respondent lacks rights and legitimate interests in the <sceix.com> disputed domain name because the disputed domain name is merely a typosquatted version of Complainant’s SCIEX mark.
Respondent uses the <sceix.com> domain name in bad faith because the domain name is used to host a fraudulent e-mail address used to target and defraud Complainant and customers of Complainant while the resolving website is inactive. Respondent registered the <sceix.com> domain name in bad faith because it did so in a manner indicating typosquatting and undoubtedly with knowledge of Complainant’s rights in the SCIEX mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <sceix.com> disputed domain name was created on July 1, 2016
C. Additional Submissions
On October 26, 2016, the FORUM received email communications from Respondent stating that its name, address, and other personal information had been used by a third party without its knowledge to register the disputed domain name along with information to indicate that the same information is associated with a number of other domain names.
The Panel finds that, although the Respondent appears to be the victim of identity theft, the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark, that the named Respondent has no rights or legitimate interests in or to the disputed domain name, and that the named Respondent has engaged in bad faith use and registration of the disputed domain name.
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 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 (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.”).
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid, subsisting, and renewed trademark, SCIEX. The Complainant has adequately pled its rights and interests in and to the trademark. The Respondent, or someone in Respondent’s name, arrives at the disputed domain name by merely transposing the “e” and “I” and adding a g TLD, “.com.” This is insufficient to distinguish the disputed domain name from the registered trademark of Complainant.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark.
The Panel further finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. As the Respondent is the Registrar-confirmed registrant of the disputed domain name in the WHOIS record at commencement and, as such, is the proper Respondent in this proceeding.
The Panel finds that the Respondent is not commonly known by the disputed domain name. It further finds that Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain name is used to host a fraudulent e-mail address used to target and defraud Complainant and customers of Complainant. Complainant has provided, in Exhibit 9, an e-mail exchange involving e-mail addresses hosted at the disputed domain name apparently attempting to access the banking information of a third party to demonstrate this purported use. As the Panel finds this evidence sufficient to support this claim, the Panel finds that Respondent’s use of the <sceix.com> disputed domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
The Panel further finds that Respondent lacks rights and legitimate interests in the <sceix.com> domain name because the domain name is merely a typosquatted version of Complainant’s SCIEX mark, created through the transposition of two letters of the mark.
As such, the Panel finds that the Respondent has no rights or legitimated interest in or to the disputed domain name.
Complainant does not make any arguments regarding Respondent’s bad faith registration and use of the <sceix.com> domain name which are specifically enumerated by Policy ¶ 4(b). However, prior panels have agreed that the Policy is illustrative, rather than exclusive. See Digi Int’l Inc. v. DDI Sys., FA 124506 (FORUM Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant claims that Respondent uses the <sceix.com> domain name in bad faith because the domain name is used to host a fraudulent e-mail address used to target and defraud Complainant and customers of Complainant. Complainant has provided, in Exhibit 9, an e-mail exchange involving e-mail addresses hosted at the domain name apparently attempting to access the banking information of a third party to demonstrate this purported use. The Panel, therefore, finds that Respondent’s use of the <sceix.com> domain name is done in bad faith. See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”).
Complainant maintains that Respondent uses the <sceix.com> domain name in bad faith because the resolving website is inactive. The Panel notes that Complainant has not provided screenshots to establish this inactive use. Nonetheless, as there is no evidence in the record to support this inactive use, the Panel finds it does not support a finding of bad faith in this regard.
Complainant further alleges that Respondent registered the <sceix.com> domain name in bad faith because it did so undoubtedly with knowledge of Complainant’s rights in the SCIEX mark. Complainant claims that Respondent had such knowledge based upon the fame of the SCIEX mark, its long-standing use, Respondent’s registration of a nearly identical disputed domain name, and Respondent’s purported impersonation of Complainant. The Panel, therefore, finds that Respondent registered the domain name with actual knowledge of Complainant’s SCIEX mark and, therefore, finds that the disputed domain name, under the totality of the circumstances, was registered and used in bad faith.
Complainant further asserts that Respondent registered the <sceix.com> disputed domain name in bad faith because it did so in a manner indicating typosquatting, through the transposition of letters in the SCIEX mark. As this appears to be a clear case of typosquatting and the record is devoid of any contrary evidence, the Panel finds that Respondent’s registration of the disputed domain name was done in bad faith.
Therefore, the Panel finds that although the Respondent may have been the victim of identity theft, it is the named respondent for this matter. As such, the Panel finds that the named Respondent has engaged in bad faith use and registration of 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 <sceix.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: November 10, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page