The Harry Walker Agency, Inc. v. david richardson
Claim Number: FA1904001840210
Complainant is The Harry Walker Agency, Inc. (“Complainant”), represented by Anthony F. Lo Cicero of Amster, Rothstein & Ebenstein, New York, USA. Respondent is david richardson (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <harrywalkers.com>, registered with Wild West Domains, LLC..
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 23, 2019; the Forum received payment on April 23, 2019.
On April 24, 2019, Wild West Domains, LLC confirmed by e-mail to the Forum that the <harrywalkers.com> 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 26, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 16, 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@harrywalkers.com. Also on April 26, 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 May 17, 2019, 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 is an exclusive speakers’ agency that has represented some of the world’s foremost leaders for decades. Complainant has rights in THE HARRY WALKER AGENCY mark through its registration with the United States Patent and Trademark Office (“USPTO”). Complainant originally filled their mark on May 9, 2018 and was successfully published for opposition on February 12, 2019 and registration should issue in the next few months. See Amend. Compl. Annex G. Furthermore, Complainant has been using THE HARRY WALKER AGENCY mark since 1985, which shows that Complainant can demonstrate common law rights in the mark. Respondent’s <harrywalkers.com> domain name is confusingly similar to Complainant’s THE HARRY WALKER AGENCY mark since the dominant element of the mark is “HARRY WALKER” with respondent leaving off the descriptive terms “the” and “agency”.
Respondent has no rights or legitimate interests in the <harrywalkers.com> domain name because Respondent is not commonly known by the disputed domain name. Respondent also fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather Respondent is using an email address associated with the disputed domain name for a phishing scheme.
Respondent has used the disputed domain in bad faith. Specifically, Respondent attempts to impersonate Complainant in furtherance of a phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on February 15, 2019.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s 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 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”).
The Panel finds that the disputed domain name, <harrywalkers.com> in confusingly similar to Complainant’s valid and subsisting trademark, THE HARRY WALKER AGENCY. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the dispute domain name by merely deleting spaces and adding an “s” and the gTLD “.com” to Complainant’s precise trademark. This is inadequate to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
Furthermore, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the dispute domain name. Respondent is not commonly known by the disputed domain name. In addition, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather Respondent is apparently using an email address associated with the disputed domain name for a phishing scheme.
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 has engaged in bad faith use and registration of the disputed domain name. Respondent apparently used the disputed domain name to impersonate Complainant and try to steal money, thus engaging in a phishing scheme. Panels have previously held that using a disputed domain name to phish for internet users’ personal information is evidence of bad faith. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Here, Complainant has provided information pertaining to Respondent engaging in illegal, fraudulent activity to divert funds from Complainant’s bank account. See Amend. Compl. Annex B.
Additionally, given the similarity between the disputed domain name and Complainant’s trademark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights and interests in its trademark, HARRY WALKER AGENCY.
As such, the Panel finds that Respondent registered and uses the disputed domain in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <harrywalkers.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: May 18, 2019
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