Ryan Companies US, Inc. v. paul mcquaid
Claim Number: FA1705001732515
Complainant is Ryan Companies US, Inc. (“Complainant”), represented by Jeffery R. Cadwell of Dorsey & Whitney LLP, Minnesota, USA. Respondent is paul mcquaid (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is<ryancompaniesinc.com>, registered with Name.com, Inc.
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 May 19, 2017; the Forum received payment on May 19, 2017.
On May 22, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <ryancompaniesinc.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 May 26, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 15, 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@ryancompaniesinc.com. Also on May 26, 2017, 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 June 22, 2017, 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, Ryan Companies US, Inc., uses the RYAN mark to provide and market construction related services. Complainant has rights in the RYAN mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,631,406, registered Oct. 8, 2002.) See Amended Compl., at Attached Ex. G. Respondent’s <ryancompaniesinc.com> is confusingly similar to complainant’s mark as it contains the mark in its entirety, only adding the generic terms “companies” and “inc.” and relates to Complainant’s business, and the most common generic top-level domain (“gTLD”), “.com.”
Respondent does not have rights or legitimate interests in the <ryancompaniesinc.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission or license to use the RYAN mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is using the disputed domain name to create an email account impersonating one of Complainant’s employees for the purpose of defrauding one of Complainant’s customers. See Amended Compl., at Attached Ex. I.
Respondent has registered and used the <ryancompaniesinc.com> domain name in bad faith. Respondent must have had actual or constructive knowledge of Complainant’s RYAN mark and business because of the notoriety of Complainant’s RYAN mark and familiarity to countless customers, coupled with the registration of the disputed domain name using the added generic terms Respondent chose to incorporate. Second, Respondent’s domain name is being used to generate fraudulent email accounts to perpetrate a “spearfishing” campaign against Complainant’s customer.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on January 11, 2017.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the dispute domain name; and that 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 the valid and subsisting trademark held by Complainant. Complainant has adequately pled its rights and interests in and to the trademark RYAN. Respondent arrives at the disputed domain name, <ryancompaniesinc.com> by merely adding the generic words “companies inc” and the g TLD “.com” to the end of the disputed domain name. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel further finds Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no license or permission to register the disputed domain name. The WHOIS information of record identifies Respondent as “paul mcquaid.” There is no other evidence in the record that would indicate Respondent is commonly known by the disputed domain name. As such, the Panel finds that Respondent is not commonly known by the disputed domain name.
The Panel finds that Respondent’s lack of rights or legitimate interests in the disputed domain name is evinced by its failure to use the name for a bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant contends that Respondent is using the disputed domain name to create an email account impersonating one of Complainant’s employees for the purpose of defrauding one of Complainant’s customers. Passing off behavior does not evince rights or legitimate interests. The Panel finds that Respondent’s use of <ryancompaniesinc.com> is evidence of its lack of rights or legitimate interests in the disputed domain name and failure to make a bona fide offering of goods or services or a legitimate non-commercial or fair use.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent had actual knowledge of Complainant’s RYAN mark and rights thereto. Given the wide use of the RYAN mark and its resulting notoriety and the totality of the circumstances, the Panel finds that Respondent registered the disputed domain with actual knowledge of Complainant’s prior rights in and to the mark RYAN.
Respondent appears to attempt to pass itself off as Complainant by generating fraudulent email accounts. Complainant terms this use a “spearfishing campaign” and as such is strong evidence of bad faith registration and use. The panel in Dorsey & Whitney LLP coined this phrase in finding bad faith, stating, “Respondent uses the . . . domain name in bad faith under Policy ¶ 4(a)(iii) because the domain is used for the purpose of ‘spearfishing.’” FA1603001664895 (Forum Apr. 20, 2016). The panel defined the term as “hosting an e-mail address impersonating one of Complainant’s employees for the purpose of defrauding Complainant.” Id. Panels have found that adoption and use of a domain name for the purposes of impersonation and sending fraudulent emails shows registration and use in bad faith. See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (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).
Therefore, the Panel finds that Respondent’s spearfishing campaign amounts to bad faith under 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 <ryancompaniesinc.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: June 22, 2017
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