Textron Innovations Inc. v. ray ramos
Claim Number: FA1801001767938
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick, Indiana, USA. Respondent is ray ramos (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <txttav.com>, registered with Google Inc.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the Forum electronically January 19, 2018; the Forum received payment January 19, 2018.
On January 22, 2018, Google Inc. confirmed by e-mail to the Forum that the <txttav.com> domain name is registered with Google Inc. and that Respondent is the current registrant of the name. Google Inc. verified that Respondent is bound by the Google Inc. registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 25, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 14, 2018, 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@txttav.com. Also on January 25, 2018, 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 February 15, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson, to sit here as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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’s Allegations in this Proceeding:
Complainant is not only one of the world’s best-known, multi-industry companies, it is a pioneer of the diversified business model. Founded in 1923, Complainant became a network of businesses with total revenues of $13.8 billion, with approximately 35,000 employees and with facilities and a presence in 25 countries. Complainant has rights in the TXT mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,037,815, registered Feb. 11, 1997). See Compl. Ex. 3.
Respondent’s <txttav.com> domain name is identical or confusingly similar to Complainant’s mark as it contains the mark in its entirety and appends the term “tav.”
Respondent has no rights or legitimate interests in the <txttav.com> domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS information lists the Respondent as “ray ramos.” See Amend. Compl. Ex. 1. Complainant also has not authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to trade upon the goodwill of the Complainant to further phishing scams while impersonating Complainant’s executives. See Compl. Ex. 5. Further, the domain name resolves to an inactive webpage.
Respondent registered and uses the <txttav.com> domain name in bad faith. Respondent registered the domain name to disrupt Complainant’s business and attempts to attract users to its webpage by trading on the goodwill associated with Complainant in order to further a phishing scam by impersonating Complainant’s executives. See Compl. Ex. 5. Further, Respondent otherwise fails to make an active use of the domain name’s resolving webpage. Finally, Respondent must have had actual knowledge of Complainant’s rights in the mark when registering the domain name at issue, showing such knowledge by using the mark in its entirety and phishing while passing itself off as Complainant.
Respondent’s Responsive Contentions:
Respondent did not submit a response in this proceeding. The Panel notes that Respondent registered the <txttav.com> domain name November 3, 2017. See Compl. Ex. 1.
Complainant established rights and legitimate interests in the mark contained within the disputed domain name.
Respondent has no such rights or legitimate interests in the mark or in the domain name containing it in its entirety.
Respondent registered a confusingly similar domain name containing Complainant’s mark in its entirety.
Respondent registered and passively holds the domain name but for a phishing scam.
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 Complainant to 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical or Confusingly Similar:
Complainant has rights in the TXT mark through its registration of the mark with the USPTO (e.g. Reg. No. 2,037,815, registered Feb. 11, 1997). See Compl. Ex. 3. 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. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant established rights in the TXT mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <txttav.com> domain name is identical or confusingly similar to Complainant’s mark as it contains the mark in its entirety and appends the term “tav.” The Panel notes that the domain name also incorporates the generic top-level domain (“gTLD”) “.com,” and neither change to a registered mark sufficiently distinguishes a domain name for the purposes of Policy ¶4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the <txttav.com> domain name is confusingly similar to the TXT mark under Policy ¶4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that Respondent registered a domain name that uses Complainant’s mark in its entirety and is confusingly similar to the mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights or Legitimate Interests:
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden of proof shifts to Respondent to show it does have such rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent has no rights or legitimate interests in the <txttav.com> domain name. Where no response is filed, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “ray ramos” as the registrant. See Amend. Compl. Ex. 1. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the TXT mark. Panels may use such assertions as evidence of lacking rights or legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain name prior to its registration, and that Complainant has not given Respondent permission to use the mark in any manner. Accordingly, the Panel agrees that Respondent is not commonly known by the <txttav.com> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the disputed domain name in connection with any bona fide offering of goods or services or any legitimate noncommercial or fair way as it attempts pass off as Complainant to phish for information from Complainant’s customers. Complainants may use phishing attempts to evidence a lack of rights or legitimate interests under Policy ¶ 4(c)(i) & (iii). See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides an email thread containing the email address used by Respondent, <rpotucek@txttav.com>, advising individuals to wire funds to a Suntrust Bank account. See Compl. Ex. 5. Accordingly, the Panel finds that Respondent passes off as Complainant to phish for information and funds, failing to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Further, Complainant contends that the disputed domain name resolves in a website that lacks any content. Failure to make active use of a confusingly similar domain name may evidence a lack of any bona fide offering of goods or services or any legitimate noncommercial or fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Complainant does not provide supporting exhibits or evidence to support this assertion; however, the Panel accepts Complainant’s contentions in the absence of any responsive proof and agrees that Respondent fails to actively use the domain name at-issue. The Panel finds that Respondent lacks rights and legitimate interests in the domain name.
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith:
Complainant argues that Respondent registered and uses the <txttav.com> domain name in bad faith because it seeks to disrupt Complainant’s business and attempts to create a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name and to commercially benefit by passing off as Complainant to phish for users’ information and funds. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evidence bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also 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). Complainant provides a screenshot of the email thread, which includes Respondent’s efforts to make users transfer funds to a Suntrust bank account, presumably for Respondent’s commercial gain. See Compl. Ex. 5. Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempts to commercially benefit from Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Further, Complainant claims that Respondent inactively holds the domain name, as Respondent fails to use the disputed domain name for any purpose. Inactively holding a confusingly similar domain name can evidence bad faith registration and use under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). As noted above, Complainant does not provide any supporting exhibits or evidence to support this assertion. However, in the absence of responsive evidence, the Panel may accept Complainant’s assertions and find that Respondent fails to actively use the domain name at-issue. The Panel finds that Respondent registered the <txttav.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Further, Complainant claims that Respondent had actual knowledge of Complainant’s rights in the TXT mark at the time of registering the <txttav.com> domain name. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can evidence 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 contends that Respondent knew of Complainant’s mark based on the way that it acquired and used the domain name at issue. The Panel agrees that Respondent had actual knowledge of Complainant’s mark based on the nominal use and wrongful use in order to carry out phishing scams and finds that Respondent registered and passively holds and/or conducts phishing scams at the domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN 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 <txttav.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: March 1, 2018.
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page