Cognizant Technology Solutions U.S. Corporation v. James E Lund
Claim Number: FA1905001843381
Complainant is Cognizant Technology Solutions U.S. Corporation (“Complainant”), represented by David M. Kramer of DLA Piper LLP (US), District of Columbia, USA. Respondent is James E Lund (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cognizinant.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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 15, 2019; the Forum received payment on May 15, 2019.
On May 20, 2019, Wild West Domains, LLC confirmed by e-mail to the Forum that the <cognizinant.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 May 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 13, 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@cognizinant.com. Also on May 24, 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 June 18, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.
On June 28, 2019 the Panel caused a Panel Order to be issued to Complainant, the reasons for which and terms thereof being considered below in the Discussion. Complainant responded to that Panel Order after seeking (and being granted) an extension of time for doing so.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights in COGNIZANT. Complainant holds a national registration for that trademark. Complainant submits that the domain name is identical or confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name because it has no trademark rights; is not known by the same name; and the domain name has not been used other than for a nefarious purpose. In particular, it is asserted that as from May 15, 2019, the disputed domain name directed visitors to a parked page and that, beginning at least as early as April 2019, email addresses associated with the domain name have been used to impersonate Complainant’s employees for the purposes of carrying out a phishing scam. Complainant states, “in sum, Respondent is using the domain name to misdirect consumers and to attempt to defraud Complainant (and potentially third parties).”
Complainant alleges that Respondent registered and used the disputed domain name in bad faith having targeted Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant provides business and technology services by reference to the trademark COGNIZANT;
2. Complainant owns United States Patent and Trademark Office (“USPTO”) Reg. No. 2,484,075, registered September 4, 2001 for the trademark COGNIZANT;
3. the disputed domain name was registered on April 23, 2019; and
4. there is no commercial relationship between the parties.
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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant has rights since it provides proof of its registration of the trademark with the USPTO, a national trademark authority.
For the purposes of comparison of the disputed domain name with the trademark the gTLD, “.com”, can be disregarded (see, for example, Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017)). Complainant asserts that the residual term, “cognizinant”, is a deliberately misspelt iteration of the trademark. Whilst the Panel would not characterise the term “cognizinant” as an obvious or common mispelling of the dictionary word, “cognizant”, the Panel finds that when compared visually and aurally, the disputed domain name and the trademark are confusingly similar.
The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The publicly available WhoIs information shielded the name of the actual domain name holder behind a proxy service provider. As a consequence of these proceedings, the Complaint was voluntarily amended to nominate the actual domain name owner, “James E Lund”, as Respondent. There is nothing to indicate that Respondent might be commonly known by the disputed domain name. There is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties. Further, the Complaint asserted that as from May 15, 2019, the disputed domain name directed visitors to a parked page and that, beginning at least as early as April 2019, email addresses associated with the domain name have been used to impersonate Complainant’s employees for the purposes of carrying out a phishing scam.
The Panel noted with caution that there was no evidence in support of either of those claims accompanying the Complaint. Since it was not otherwise clear that Respondent lacked rights or interests in the domain name or had acted in bad faith the Panel caused the Forum to issue an Order to Complainant in the following terms:
Pursuant to Rule 12 of ICANN’s Uniform Domain Name Dispute Resolution Policy, the Complainant is hereby requested to provide evidence of (a) the parked page to which the disputed domain name directed on May 15, 2019 or thereafter, and (b) the email addresses and emails associated with the disputed domain name used to impersonate Complainant’s employees for the purposes of carrying out a phishing scam in April 2019 or thereafter and have it e-mailed to the Forum and Complainant no later than July 5, 2019.
On July 3, 2019, Complainant sought further time for doing so in view of the July 4th holiday in the United States. The Panel granted a short extension of time and Complainant responded to the Forum in a timely manner with a further submission and material now described. The submission read:
Please find attached three emails establishing that the Domain Name was used to further a phishing scheme involving the impersonation of Complainant’s employees. These materials have been redacted to protect client confidentialities, but we can provide un-redacted copies if there is a confidential way to do so. That said, the redaction of the material should not influence the probative nature of this evidence. Specifically, these emails demonstrate that the Domain Name was used primarily to impersonate Siva Selvam G, a long-time employee of Complainant (LinkedIn page attached), as part of a scheme that also involved the impersonation of Vinay Agarwal, Sonaly Mukherjee, and Sukanta Talukdar, all employees of Complainant. The intent of the phishing fraud was to solicit and misdirect payment of approximately US $500,000 in falsified invoices. In particular, the two attachments dated April 19, 2019 demonstrate that the scheme was initiated via emails from spoofed “cognizant.com” email addresses that actually originated from the domain name “coginziant.com,” which is not the subject of this proceeding. However, subsequent to these initial exchanges, on April 23, 2019 a follow-up email in furtherance of the fraud was sent, again from a spoofed “cognizant.com” email address. In that later case, however, the true originating domain name was the subject domain name “cognizinant.com.” The connection between these email threads is confirmed by the identity of the recipient “Connie” who is copied on both emails, as well as the identical subject lines that explicitly relate to a list of purported “unpaid invoices.”
Complainant’s information security team has conducted an extensive review of this situation and confirmed that fraud email originated from the Domain Name, “cognizinant.com” (in addition to the second “coginziant.com” typosquatted name).
With respect to the parked page to which the Domain Name resolved as of May 15, we have been unable to locate documentary evidence of this fact and note that we are unable to access any website at the domain name at this time. However, even absent additional evidence on this point Complainant believes that the above-noted evidence relating to the phishing fraud definitively establishes that the Respondent has used the domain name in bad faith and in furtherance of commercial gain.
The Panel is censorious of the fact that Complainant did not and apparently was not able to provide proof for some of its claims about use of the disputed domain name. Nevertheless, the supplementary material provided in response to the Panel Order does suggest that someone using another domain name <coginziant.com>, not in dispute in these proceedings, hacked into internal correspondence between Complainant’s offices. The single piece of evidence linking that act to the domain name in dispute here is a so-called “follow-up email”, dated April 23, 2019, said to have been sent “in furtherance of the (phishing) scam”.
The April 23, 2019 email used the disputed domain name. The name of the addressee is redacted but the salutation is “Hi Connie”, a name that appears in another email chain. The email reads as a reply to “Connie” but the initiating email is not included. Of itself, the email says nothing sinister but, if read with the other email string originating from the different domain name, it can be argued that the sender was continuing with its request that certain unsettled invoices be paid to a new account.
Panels applying the Policy have consistently and self-evidently found that use of a domain name in connection with a phishing scheme does not establish rights or interests (see, for example, Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”). Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)). Absent a Response, the Panel can in accordance with paragraphs 5(f), 14(a) and 15(a) of the Rules draw inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.
That said, in this case the Complaint, as filed, carried no proof of its assertions with respect to paragraph 4(c) of the Policy and the Panel Order elicited material that would be rejected out of hand if administration of this Policy adhered to ordinary rules of evidence.
There is no evidence as to the ownership of the domain name, <coginziant.com>, used to generate allegedly linked emails. There is no evidence that Complainant has brought UDRP proceedings in relation to that name. There has been no attempt to link the two domain names other by textual material in the emails. The Panel has nonetheless made its own enquiries and notes that the domain names share the one registrar and were created within a few days of each other. On balance, the Panel finds that the onus shifts to Respondent and in the absence of a Response, the Panel finds that Respondent has no rights or interests.
The second limb of the Policy has been established.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
The Panel observes that the application of any of those scenarios is, on the facts, less appropriate than the simple findings that the disputed domain name was registered in bad faith and then used in bad faith. The Panel has already found the domain name to be confusingly similar to the trademark. In all the circumstances, the Panel finds that the disputed domain name is a typosquatted variation on the trademark and was registered in bad faith. Further, Respondent’s use of the disputed domain name as just described is manifestly bad faith use.
Panel finds that Complainant has satisfied the third and final element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cognizinant.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: July 11, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page