Leidos, Inc. v. Elizabeth Hillygus
Claim Number: FA2002001882296
Complainant is Leidos, Inc. (“Complainant”), represented by Leo S. Fisher of Bean, Kinney & Korman P.C., Virginia, USA. Respondent is Elizabeth Hillygus (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lei-dos.com>, registered with Google Llc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 6, 2020; the Forum received payment on February 6, 2020.
On February 7, 2020, Google Llc confirmed by e-mail to the Forum that the <lei-dos.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 February 18, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 9, 2020 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@lei-dos.com. Also on February 18, 2020, 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 March 12, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <lei-dos.com> domain name is confusingly similar to Complainant’s LEIDOS mark.
2. Respondent does not have any rights or legitimate interests in the <lei-dos.com> domain name.
3. Respondent registered and uses the <lei-dos.com> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant, Leidos, Inc., offers goods and services across a variety of industry sectors. Complainant holds a registration for the LEIDOS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,937,101, registered Apr. 12, 2016).
Respondent registered the <lei-dos.com> domain name on June 11, 2019, and uses it to pass off as Complainant in furtherance of an email phishing scheme.
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 Complainant has rights in the LEIDOS mark based upon registration with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <lei-dos.com> domain name uses the LEIDOS mark, adding only a hyphen the “.com” generic top-level domain (“gTLD”). The addition of punctuation and a gTLD does not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”). Accordingly, the Panel finds that Respondent’s <lei-dos.com> domain name is confusingly similar to Complainant’s LEIDOS mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant claims that Respondent has no rights or legitimate interests in the <lei-dos.com> domain name because Respondent is not commonly known by the disputed domain name and is not permitted to use Complainant’s LEIDOS mark. The WHOIS information of record lists the registrant of the disputed domain name as “Elizabeth Hillygus.” Therefore, the Panel finds that Respondent is not 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).
Complainant argues that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant provides evidence that Respondent fails to make an active use the disputed domain name. The Panel therefore agrees with Complainant and finds that Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶¶ 4(c)(i) or (iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
Complainant also argues that Respondent uses the disputed domain name to pass off as Complainant in furtherance of an email phishing scheme. The use of an email address associated with a disputed domain name to pass off as a complainant, in furtherance of phishing, is not indicative of rights or legitimate interests under 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)”). Complainant provides email evidence that Respondent uses the disputed domain name to attempt to divert payments to Respondent. The Panel finds that this use is not a bona fide offering of goods and services or a legitimate noncommercial or fair use, and thus Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <lei-dos.com> domain name in bad faith because Respondent uses the disputed domain name to impersonate Complainant and engage in an e-mail phishing scheme. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
Complainant also claims that Respondent use of the <lei-dos.com> domain name to perpetrate fraud is evidence of bad faith. The use of an email address associated with a disputed domain name to defraud users independently demonstrates bad faith under Policy ¶ 4(a)(iii). See Airbnb, Inc. v. JAMES GRANT, FA1760182 (Forum Dec. 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”).
Complainant contends that Respondent had actual knowledge of Complainant’s rights in the LEIDOS mark when it registered the disputed domain name. Actual knowledge may be shown through a respondent’s use of a complainant’s marks to pass itself off as the complainant under Policy ¶ 4(a)(iii). See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Complainant argues that Respondent uses Complainant’s mark and an actual employee’s name in its attempt to impersonate Complainant through email and therefore has actual knowledge of Complainant’s rights in the LEIDOS mark. The Panel agrees and finds that this is further evidence that Respondent registered and uses the <lei-dos.com> domain name in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied 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 <lei-dos.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 13, 2020
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