Itron Inc. v. Gwen Howard
Claim Number: FA1909001862161
Complainant is Itron Inc. (“Complainant”), represented by Tricia Goddard of Itron Inc., Texas, USA. Respondent is Gwen Howard (“Respondent”), Mississippi, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lttron.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 13, 2019; the Forum received payment on September 13, 2019.
On September 16, 2019, Wild West Domains, LLC confirmed by e-mail to the Forum that the <lttron.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 September 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 7, 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@lttron.com. Also on September 16, 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 October 9, 2019 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 in the energy providing business. Complainant has rights in the ITRON mark through its registration in the United States in 1989.
Complainant alleges that the disputed domain name is confusingly similar to its ITRON mark because it misspells the mark by using a lower case “L” and adding an additional “T” to the mark.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to send e-mails impersonating an employee of Complainant to attempt to gather Internet users’ personal information.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith by attempting to impersonate an employee of Complainant to gather Internet users’ personal information through e-mails.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark ITRON dating back to 1989.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent has used the disputed domain name to send fraudulent e-mails impersonating one of Complainant’s employees.
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 disputed domain name misspells Complainant’s mark by using a lower case “L”, which is visually similar to the letter “I” in Complainant’s mark, adding an additional “T”, and a “.com” gTLD. Such changes are not sufficient to avoid a finding of confusing similarity under the Policy. See Oracle International Corporation v. Terence / tellraceheart, FA 1713066 (Forum Feb. 22, 2017) (“Respondent’s <oracie.com> domain name contains Complainant’s ORACLE trademark with its “l” replaced by the similarly shaped letter “i” and the top-level domain name “.com” appended thereto to form the at-issue domain name.”); see also Exxon Mobil Corp. v. Orville Walk, FA 1503047 (Forum July 13, 2013) (finding <exxonmobile.net> confusingly similar to EXXONMOBIL); see also F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (holding, “Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”). Therefore, the Panel finds that the <lttron.com> domain name is confusingly similar to Complainant’s ITRON mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Complainant to use its ITRON mark in any way. Respondent is not commonly known by the disputed domain name: absent a response, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Gwen Howard”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent has used the disputed domain name to send e-mails impersonating an employee of Complainant to attempt to gather Internet users’ personal or financial information. Use of an e-mail address associated with a disputed domain name to impersonate an employee of complainant and gather personal information is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”). Therefore, the Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent has no 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 send e-mails impersonating an employee of Complainant to attempt to gather Internet users’ personal or financial information. Use of e-mail to impersonate complainant or an employee of complainant in order to obtain personal or financial information may be evidence of bad faith per Policy ¶¶ 4(b)(iii) and/or (iv). 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)”). Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Moreover, by replacing the capital letter “I” with the visually similar lower case letter “l”, and adding an extra letter “T”, in Complainant’s mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting 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 <lttron.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 10, 2019
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