HP Hewlett Packard Group LLC v. [REDACTED]
Claim Number: FA1903001836710
Complainant is HP Hewlett Packard Group LLC (“Complainant”), represented by David J. Diamond of Richard Law Group, Inc., Texas, USA. Respondent is [REDACTED] (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hewletpackard.org> (‘the Domain Name’), registered with Wild West Domains, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 29, 2019; the Forum received payment on March 29, 2019.
On April 1, 2019, Wild West Domains, LLC confirmed by e-mail to the Forum that the <hewletpackard.org> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 April 3, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 23, 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@hewletpackard.org. Also on April 3, 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 5, April, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 contentions can be summarized as follows:
The Complainant is the owner of the trademark HEWLETT PACKARD registered, inter alia, in the USA for technology related goods and services with use from 1941.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s trademark merely omitting a ‘t’ and adding the gTLD .org.
Respondent does not have rights or legitimate interests in the Domain Name. The Respondent is not commonly known by the Domain Name and is not authorized by the Complainant.
The Domain Name has been used to send fraudulent e-mails falsely in the name of a genuine employee of the Complainant. This cannot be a bona fide offering of goods or services or a noncommercial legitimate fair use.
It is bad faith registration and use. The reference to the name of a genuine employee of the Complainant shows the Respondent is aware of the Complainant and its rights. Typosquatting per se is evidence of bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trademark HEWLETT PACKARD, registered, inter alia, in the USA for technology related goods and services with first use recorded from 1965.
The Domain Name registered in 2019 has been used to send fraudulent e-mails falsely using the name of a genuine employee of the Complainant.
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”).
Preliminary Issue: Complainant’s Request for Redaction of Respondent’s Identity
According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents. Following this case and in view of the false use of the name of an employee of the Complainant, the Panelist orders that the Respondent’s name be redacted from the Decision.
Identical and/or Confusingly Similar
The Domain Name consists of a misspelling of the Complainant’s HEWLETT PACKARD mark (registered, inter alia, in the USA for technology related goods and services with first use recorded as 1965) merely omitting the letter ‘t’ and adding the gTLD “.org.” The Panel agrees that misspellings, such as omission of a letter or letters, do not distinguish the Domain Name from the Complainant's trademark pursuant to the Policy. See Twitch Interactive Inc. v. Zhang qin, FA 1626511 (Forum Aug. 4, 2015).
The gTLD “.org” does not serve to distinguish the Domain Name from the HEWLETT PACKARD mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (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 purpose to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has been used in a fraudulent e-mail scheme. This is deceptive and confusing and amounts to passing off. As such, it cannot amount to the bona fide offering of goods and services or a noncommercial legitimate or fair use. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
As such, the Panelist 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.
Registration and Use in Bad Faith
Impersonating a complainant by use of a complainant’s mark in a fraudulent e-mail fraud is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4(b)(iii).) In the opinion of the panelist the use made of the Domain Name in relation to a fraudulent e mail scam is confusing in that recipients of the e mails will reasonably believe those e mails are connected to or approved by the Complainant as the name of one of the Complainant’s employees is used. This use of the name of a genuine employee of the Complainant shows that the Respondent was aware of the Complainant and its business and rights and constitutes passing off. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of electronic content on the Internet under Policy 4(b)(iv). See Qatalyst Partners L.P. v. Devinmore, 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 is evidence of bad faith registration and use).
Typosquatting per se is bad faith registration and use. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
As such, the Panelist believes 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 under para 4(b)(iv) and 4 (b)(iii). There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hewletpackard.org> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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