Teledyne Technologies Incorporated v. Christina Pena / Pena Medical Tools Inc
Claim Number: FA1911001869610
Complainant is Teledyne Technologies Incorporated (“Complainant”), represented by David J. Zoetewey of Teledyne Technologies Incorporated, California, USA. Respondent is Christina Pena / Pena Medical Tools Inc (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <teledynee.com>, registered with Google 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 Panelist.
Complainant submitted a Complaint to the Forum electronically on November 1, 2019; the Forum received payment on November 1, 2019.
On November 04, 2019, Google LLC confirmed by e-mail to the Forum that the <teledynee.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 November 7, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 27, 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@teledynee.com. Also on November 7, 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. Respondent did however send an e-mail to the Forum, see below.
On December 2, 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.
PRELIMINARY ISSUE: IDENTITY THEFT
Respondent contends that it has been the victim of identity theft, see below. The Panel has taken the following rules and precedent into account in making a determination on not redacting Respondent’s identity.
According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.).
However, according to Forum Supplemental Rule 15(b), “All requests pursuant to Policy paragraph 4(j) and Rule 16(b) to have a portion of the decision redacted, must be made in the Complaint, the Response, or an Additional Submission that is submitted before the Panel’s decision is published.” (emphasis added). Rule 1 defines “respondent” as “the holder of a domain-name registration against which a complaint is initiated;” and Forum Supplemental Rule 1(d) further defines “the holder of a domain-name registration” as “the single person or entity listed in the WHOIS registration information at the time of commencement.” The Panel notes precedent which holds the registrar-confirmed registrant of a disputed domain (per the WHOIS at commencement of the proceeding) the proper respondent, notwithstanding the possibility that said respondent’s identity was stolen. See, e.g., Banco Bradesco S/A v. Gisele Moura Leite, D2014-0414 (WIPO Apr. 30, 2014).
In the instant case, there has been no request in the Complaint to redact any portion of the decision, nor has there been a Response or an Additional Submission. Consequently, the Panel finds that it is not warranted to redact Respondent’s name and location from the Panel’s decision,
A. Complainant
Complainant states that it is a technology company serving the following industries: oil and gas exploration and production, oceanographic research, air and water quality environmental monitoring, and factory automation and medical imaging. Complainant’s products are sold to customers in over one hundred (100) countries, and in 2018 Complainant reported total sales in excess of two billion (2,000,000,000) U.S. dollars worldwide. Complainant operates through more than sixty (60) principal operating facilities across the United States and internationally. Complainant has rights in the TELEDYNE mark through its registration of the mark in the United States in 1956.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark as it consists of a misspelling of Complainant’s mark: the mark is followed by an extra letter “e”.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has never granted license or rights to use the mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent passively holds the disputed domain name, which resolves to a blank webpage.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent fails to make active use of the disputed domain name, which indicates bad faith registration and use. Furthermore, Respondent registered the disputed domain name with knowledge of Complainant’s rights in the mark given the Complainant’s longstanding use and the uniqueness of the TELEDYNE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. It its e-mail to the Forum, Respondent states: “I received a notice of complaint form Teledyne Technologies. This complaint was sent to the wrong person. While my name is Christina Peńa, I do not own Pena Medical Tools Inc nor do I have a domain name related to that business.”
Complainant owns the mark TELEDYNE and uses it to offer a variety of products and services.
Complainant’s rights in its marks date back to at least 1956.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is not being used. The WHOIS information appears to be false.
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 consists of a misspelling of Complainant’s mark: it consists of the mark plus an additional letter “e” and the “.com” generic top-level domain (“gTLD”). The addition of a gTLD and an additional letter fails to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank’). The Panel therefore finds that the <teledynee.com> domain name is confusingly similar to the TELEDYNE mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain: 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 “Christina Pena.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name is not being used. Failure to make active use of a disputed domain name may not be a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (”Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”). The Panel therefore finds that Respondent does not make a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent 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, Respondent registered the disputed domain name using false WHOIS contact information, and this can evince bad faith registration and use under Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”); see also ABB Asea Brown Boveri Ltd v. Global Mgr, FA 1702001716963 (Forum Mar. 30, 2017) (“Complainant contends that Respondent provided false contact information while registering the disputed domain. Registering a confusingly similar domain name using false contact information can evince bad faith registration.”); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. Vijay S Kumar/Strategic Outsourcing Services Pvt Ltd, FA 1411001647718 (Forum Jan. 4, 2016) (“False or misleading contact information indicates bad faith registration and use.”); see also Chevron Intellectual Property LLC v. Phillip Thomas/Chevron Pacific, FA 1504001615524 (Forum May 29, 2015) (“Complainant’s use of false registration data and its unexplained redirection of the disputed domain name to Complainant’s own website are further indications of such bad faith.”); see also McDonald’s Corp. v. Holy See, FA 0304000155458 (Forum June 27, 2003) (“The Panel finds that Respondent provided false contact information in the registration certificates and that such actions, even though not specifically enumerated in the Policy, may form the basis for a finding of bad faith registration and use.”); see also Mars, Incorporated v. RaveClub Berlin, FA 0106000097361 (Forum July 16, 2001) (providing false registration and contact information for infringing domain names evidenced Respondent’s bad faith). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
The disputed domain name is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, it is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no response to the Complaint. The domain name was registered using false WHOIS information, that is false contact details were used. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
Moreover, by merely adding an extra letter “e” to 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 <teledynee.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 2, 2019
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