Keysight Technologies v. Domain Administrator / China Capital Domain Fund Limited
Claim Number: FA1811001817633
Complainant is Keysight Technologies ("Complainant"), represented by Emily Cooper of Holland & Hart LLP, Colorado, USA. Respondent is Domain Administrator / China Capital Domain Fund Limited ("Respondent"), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <keysightwave2018.com>, registered with NameSilo, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 21, 2018; the Forum received payment on November 21, 2018.
On November 21, 2018, NameSilo, LLC confirmed by email to the Forum that the <keysightwave2018.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC 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 November 26, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 17, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@keysightwave2018.com. Also on November 26, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 December 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a U.S.-based company that manufactures test and measurement equipment and related software focused on the electronics and radio fields. Complainant has approximately 12,600 employees and more than US $3 billion in revenue. Complainant operates manufacturing and R&D locations across the United States, Europe, and Asia Pacific, and serves customers in more than 100 countries, including more than three quarters of the Fortune 100. Complainant has used KEYSIGHT and related marks in connection with electronic test and measurement equipment and related software and services since at least as early as 2014; the marks are the subject of registrations worldwide, including several U.S. trademark registrations. Complainant hosts an annual oscilloscope-focused online event for its user community. The most recent such event, WAVE 2018, was promoted beginning in January 2018 and took place on March 1-16, 2018. Complainant asserts common law rights in WAVE arising from its use and promotion in connection with this event.
Respondent registered the disputed domain name <keysightwave2018.com> on March 1, 2018. Complainant states that Respondent has been using the disputed domain name to redirect Internet users to a variety of websites, including sites containing malware or other harmful software, or that are part of a phishing scheme. Complainant states further that Respondent has never been associated or affiliated with Complainant and that Complainant has not authorized Respondent to use its KEYSIGHT or WAVE marks or any variation thereof.
Complainant contends on the above grounds that the disputed domain name <keysightwave2018.com> is confusingly similar to its KEYSIGHT and WAVE marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Management, 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 disputed domain name <keysightwave2018.com> incorporates Complainant's registered KEYSIGHT trademark and its claimed WAVE mark, adding the year 2018 and the ".com" top-level domain. The Panel is skeptical of Complainant's rights in WAVE, but notes that even absent such rights, neither the inclusion of "wave" in the domain name nor the inclusion of the year 2018 substantially diminishes its similarity to Complainant's KEYSIGHT mark for purposes of the Policy. See, e.g., Compagnie Gervais Danone v. Lim Sang Woon, D2017-1762 (WIPO Nov. 28, 2017) (finding <danonewhitewave.com> confusingly similar to DANONE); Salesforce.com, Inc. v. Azhar Khan, Plan My Trip, D2018-1627 (WIPO Aug. 12, 2018) (finding <dreamforce-2018.org> confusingly similar to DREAMFORCE). Accordingly, the Panel considers the disputed domain name to be confusingly similar to Complainant's registered KEYSIGHT mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered KEYSIGHT mark without authorization, and it apparently is being used for the sole purpose of redirecting Internet users to websites that attempt to install malware or are part of fraudulent phishing schemes. Such use does not give rise to rights or legitimate interests. See, e.g., Morgan Stanley v. Ryan G Foo / PPA Media Services, FA 1682650 (Forum Aug. 11, 2016).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's registration of a domain name that incorporates Complainant's mark, combining it with the name of a well-publicized event held by Complainant; the timing of that registration, occurring on the first day of Complainant's event; and the use of the domain name for fraudulent purposes, presumably for Respondent's financial gain; are indicative of bad faith registration and use under these provisions of the Policy. See, e.g., Compagnie Gervais Danone v. Lim Sang Woon, supra (finding bad faith where domain name combining mark with name of company recently acquired by complainant was registered on the same day of the acquisition); Panasonic Corp. of North America v. Maddisyn Fernandes / Fernandes Privacy Holdings, FA 1731035 (Forum June 16, 2017) (finding bad faith where domain name incorporating mark was used to disseminate malware). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <keysightwave2018.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 24, 2018
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