Lionbridge Technologies, Inc. v. luna morgan
Claim Number: FA1808001803760
Complainant is Lionbridge Technologies, Inc. (“Complainant”), represented by Lawrence R. Robins of FisherBroyles LLP, Massachusetts, USA. Respondent is luna morgan (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lionbridges.net>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 28, 2018; the Forum received payment on August 28, 2018.
On August 29, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <lionbridges.net> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. 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 August 30, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 19, 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@lionbridges.net. Also on August 30, 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 September 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is the world’s largest professional translation and localization company. Complainant has rights in the LIONBRIDGE mark based upon its registration of the mark in the United States in 1999.
Complainant alleges that the disputed domain name is virtually identical to Complainant’s mark because Respondent includes the entire mark in the disputed domain name merely adding the letter “s.”
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name because Respondent is not authorized by Complainant to use the mark. Furthermore, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant by mimicking Complainant’s legitimate web site on the resolving website, and it attempts to phish for internet users personal information through a fake employment application.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent passes off as Complainant and phishes for information through a fake job application form on the resolving website. Additionally, Respondent had actual knowledge of Complainant’s rights in the mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark LIONBRIDGE and uses it to market a range of translation services.
Complainant’s rights in its mark date back to 1999.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent uses the disputed domain name to pass off as Complainant and phish for personal information. The resolving website is essentially identical to Complainant’s legitimate website, and it displays Complainant’s mark.
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 disputed domain name is confusingly similar to Complainant’s mark because it incorporates the entire mark and merely adds the letter “s.” The addition of a single letter to a mark, as well as a gTLD, may not be sufficient to distinguish a domain name from a mark per Policy ¶ 4(a)(i). See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”); see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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). Here, the WHOIS information of record identifies Respondent as “luna morgan.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use as Respondent attempts to phish for users’ personal information using Complainant’s mark. Specifically, Complainant provides screenshots of the webpages associated with the disputed domain name which show a job application form. Use of a domain name to phish for internet users’ personal information may not be considered a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶ 4(a)(ii). See Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for Internet users personal information by offering a fake job posting on the resolving website). Consequently, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to mislead individuals seeking employment into providing their personal information through a form on the resolving website. Use of a domain name to phish Internet users’ personal information may be evidence of bad faith under Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Further Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website is essentially identical to Complainant’s legitimate website, and it displays Complainant’s mark. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes 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 <lionbridges.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 21, 2018
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