Leidos, Inc. v. Larry Desmond / xyz Inc.
Claim Number: FA1903001832572
Complainant is Leidos, Inc. (“Complainant”), represented by Jennifer L. Elgin of Bean, Kinney & Korman P.C., Virginia, USA. Respondent is Larry Desmond / xyz Inc. (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <leidos-corp.com> and <leidos-corps.com>, registered with NameCheap, Inc.
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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 5, 2019; the Forum received payment on March 5, 2019.
On March 5, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <leidos-corp.com> and <leidos-corps.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 March 13, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 2, 2019 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@leidos-corp.com, postmaster@leidos-corps.com. Also on March 13, 2019, 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 April 3, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 offered goods and services under the LEIDOS mark since September 27, 2013, and now offers services and related goods and services across a variety of industry sectors. Complainant has rights in the LEIDOS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,937,101, registered Apr. 12, 2016). Respondent’s <leidos-corp.com> and <leidos-corps.com> domain names are confusingly similar to Complainant’s mark as they each add a hyphen and a generic term, either “corp” or “corps.”
Respondent has no rights or legitimate interests in the <leidos-corp.com> and <leidos-corps.com> domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses at least the <leidos-corp.com> domain name to phish for information from Complainant’s suppliers and business partners. Further, Respondent uses the domain names to display sponsored listings with “related links” diverting users to various random goods and services.
Respondent registered and uses the <leidos-corp.com> and <leidos-corps.com> domain names in bad faith. Respondent attempts intentionally to attract, for commercial gain, Internet users by passing off as Complainant through an e-mail address associated with the <leidos-corp.com> domain name in order to obtain confidential commercial information. Further, Respondent had actual knowledge of Complainant’s mark prior to registering the domain name as shown by the notoriety of Complainant’s trademark and from at least the <leidos-corp.com> domain name’s use to further a phishing scheme by contacting Complainant’s vendors.
B. Respondent
Respondent failed to submit a response in this proceeding. The Panel notes that Respondent registered the <leidos-corp.com> and <leidos-corps.com> domain names on January 23, 2019 and January 28, 2019, respectively.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights in the LEIDOS mark through its registration of the mark with the USPTO (e.g. Reg. No. 4,937,101, registered Apr. 12, 2016). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark….”) Accordingly, the Panel finds that Complainant has established rights in the LEIDOS mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <leidos-corp.com> and <leidos-corps.com> domain names are confusingly similar to Complainant’s mark as they each add a hyphen and a generic term, either “corp” or “corps.”. See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’”); see also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark). The Panel therefore finds that the <leidos-corp.com> and <leidos-corps.com> domain names are confusingly similar to the LEIDOS mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent has no rights or legitimate interests in the <leidos-corp.com> and <leidos-corps.com> domain names, as Respondent is not commonly known by the domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Relevant information includes the WHOIS, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). The WHOIS identifies “Larry Desmond / xyz Inc.” as the registrant for both domain names, and nothing in the record indicates that Complainant authorized Respondent to use the LEIDOS mark for any purpose. Accordingly, the Panel agrees that Respondent is not commonly known by the <leidos-corp.com> and <leidos-corps.com> domain names under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent uses at least the <leidos-corp.com> domain name to phish for information from Complainant’s suppliers and business partners. Using a confusingly similar domain name to phish for personal/financial information by passing off as a complainant in emails can evince a lack of rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii). See Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum Mar. 7, 2018) (“Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).”). Complainant provides a copy of the email thread using the domain name, which shows the domain name is used in connection with someone alleging to be an “IT Purchasing Manager” from “Leidos” requesting information regarding a quote or availability of items. Accordingly, the Panel finds that Respondent uses the <leidos-corp.com> domain name in connection with a phishing scheme when conducting its Policy ¶¶ 4(c)(i) and (iii) analysis, evidencing lack of rights and legitimate interests in the domain name.
Moreover, Complainant argues that Respondent uses the domain names to display sponsored listings with “related links” diverting users to various random
goods and services. Using a domain name to offer generic links to third-party services generally does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See CDW LLC v. Spencer Askew, 1806931 (Forum Oct. 22, 2018) (“Respondent employs the <cdw-logistics.com> domain name to profit by diverting internet users to a parked webpage that contains pay-per-click hyperlinks. This use is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”). Complainant provides a screenshot of the resolving webpages for the domain names, which displays various links such as “Mortgage Company” and “Car Insurance.” As such, the Panel agrees that Respondent’s use of the domain names to link users to unrelated third-parties fails to amount to any bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Thus, Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent attempts intentionally to attract, for commercial gain, Internet users by passing off as Complainant through an e-mail address associated with the <leidos-corp.com> domain name in order to obtain confidential commercial information. Using a confusingly similar domain name to trade upon the goodwill of a complainant’s mark for commercial gain via phishing can evince bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). As noted previously, Complainant provided a copy of the email thread using the domain name, which shows the domain name is used in connection with someone alleging to be an “IT Purchasing Manager” from “Leidos” requesting information regarding a quote or availability of items. Accordingly, the Panel agrees that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Further, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the LEIDOS mark at the time of registering the <leidos-corp.com> and <leidos-corps.com> domain names. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). Complainant contends that Respondent’s knowledge can be inferred from at least the <leidos-corp.com> domain name’s use to further a phishing scheme by contacting Complainant’s vendors. The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration under Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <leidos-corp.com> and <leidos-corps.com> domain names be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: April 15, 2019
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