Textron Innovations Inc. v. fc
Claim Number: FA1612001706763
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick of Pastrick Law LLC, Indiana, USA. Respondent is fc (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kautextron.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 December 9, 2016; the Forum received payment on December 9, 2016.
On December 13, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <kautextron.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 December 14, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2017 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@kautextron.com. Also on December 14, 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 January 12, 2017, 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 that serves a diverse and global customer base. Both Complainant and Kautex Textron are affiliates of the same umbrella company, Textron, Inc. Complainant has rights in the TEXTRON mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,090,704, registered May 9, 1978). Respondent’s <kautextron.com> is confusingly similar to Complainant’s TEXTRON marks, as it contains the mark in its entirety, merely adding the term “kau” and the generic top-level domain (“gTLD”) “.com.” This similarity is enhanced, as the term “kau” is clearly related to Complainant’s affiliated company Kautex Textron.
Respondent has no rights or legitimate interests in the domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the TEXTRON mark. Respondent has not used, nor made any demonstrable preparation to use, the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the disputed domain name does not resolve to an active page. Email addresses associated with the disputed domain name have been utilized as part of a phishing scam in which parties attempting to pass off as employees of Complainant attempt to elicit personal and financial information and money from parties with whom Complainant has business relationships.
Respondent registered and is using the disputed domain name in bad faith under the Policy. Respondent is using <kautextron.com> to provide an email extension which it uses to pass off as Complainant and disrupt Complainant’s business by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the emails. Such conduct is proscribed as bad faith under Policy ¶¶ 4(b)(iii) and 4(b)(iv). Additionally, Respondent had actual knowledge of Complainant’s rights in the TEXTRON mark at the time it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Textron Innovations, Inc., is a multi-industry company that serves a diverse and global customer base. Both Complainant and Kautex Textron are affiliates of the same umbrella company, Textron, Inc. Complainant has rights in the TEXTRON mark based upon registration with the USPTO (e.g. Reg. No. 1,090,704, registered May 9, 1978). Respondent’s <kautextron.com> is confusingly similar to Complainant’s TEXTRON marks.
Respondent, fc, registered the <kautextron.com> domain name on September 1, 2016.
Respondent has no rights or legitimate interests in the <kautextron.com> domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the TEXTRON mark. Respondent has not used, nor made any preparation to use, the domain name. Rather, the domain name does not resolve to an active page. Email addresses associated with the disputed domain name have been used as part of a phishing scam in which parties attempting to pass off as employees of Complainant attempt to elicit personal and financial information and money from parties with whom Complainant has business relationships.
Respondent registered and is using the disputed domain name 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 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.”).
Complainant has rights in the TEXTRON mark under Policy ¶ 4(a)(i) based on registration with the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office).
Respondent’s <kautextron.com> is confusingly similar to Complainant’s TEXTRON mark to Policy ¶ 4(a)(i), as it contains the mark in its entirety, adding the term “kau” and the gTLD “.com.”
Respondent has no rights or legitimate interests in the <kautextron.com> domain name. Complainant has not authorized Respondent to use the TEXTRON mark. Respondent is not commonly known by the domain name. The WHOIS information lists Respondent as “fc.” See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name).
Respondent fails to use the <kautextron.com> domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent does not make an active use of the domain name. See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent uses the <kautextron.com> domain name as part of a phishing scam. Use of a disputed domain name to pass off as a complainant and obtain sensitive personal or financial information is not a legitimate noncommercial or fair use. See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”). Respondent uses email addresses based on the <kautextron.com> domain to impersonate Kautex Textron employees in an attempt to elicit personal/financial information and money from parties with whom Complainant does business.
Respondent registered and uses the <kautextron.com> domain name in bad faith under Policy ¶¶ 4(b)(iii) and 4(b)(iv) because the domain name is being used to provide an email extension which Respondent uses to pass off as Complainant and disrupt Complainant’s business with its phishing attempts. See SPTC, Inc. and SPTC Delaware, LLC v. Robert Seid / Chicago Title Trust, FA 1608982 (Forum Apr. 20, 2015) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Respondent had actual knowledge of Complainant's rights in the TEXTRON mark prior to registering the <kautextron.com> domain name; therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (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).
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 <kautextron.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 25, 2017
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