Qualcomm Incorporated v. David Korman
Claim Number: FA2009001911125
Complainant is Qualcomm Incorporated (“Complainant”), represented by Diana S. Bae of Arent Fox LLP, District of Columbia, USA. Respondent is David Korman (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <qualcommtechnology.com>, registered with GoDaddy.com, 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 September 2, 2020; the Forum received payment on September 2, 2020.
On September 3, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <qualcommtechnology.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 23, 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@qualcommtechnology.com. Also on September 3, 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 September 29, 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 <qualcommtechnology.com> domain name is confusingly similar to Complainant’s QUALCOMM mark.
2. Respondent does not have any rights or legitimate interests in the <qualcommtechnology.com> domain name.
3. Respondent registered and uses the <qualcommtechnology.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Qualcomm Incorporated, is a provider of wireless communication technologies. Complainant holds a registration for the QUALCOMM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,549,614, registered July 25, 1989).
Respondent registered the <qualcommtechnology.com> domain name on August 24, 2020, and uses it to conduct 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 QUALCOMM mark under Policy ¶ 4(a)(i) 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 <qualcommtechnology.com> domain name uses Complainant’s QUALCOMM mark and merely appends the term “technology” and the “.com” gTLD. The addition of a descriptive term and a gTLD to a mark is insufficient to distinguish a disputed domain name from the mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Respondent’s <qualcommtechnology.com> domain name is confusingly similar to Complainant’s QUALCOMM 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 argues that Respondent does not have rights or legitimate interests in the <qualcommtechnology.com> domain name because Respondent is not commonly known by the disputed domain name. Respondent is not licensed or authorized to use Complainant’s QUALCOMM mark. The WHOIS information of record lists the registrant of the disputed domain name as “David Korman.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights 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); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant also argues that Respondent fails to use the <qualcommtechnology.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent simply redirects users to Complainant’s own website. The use of a confusingly similar domain name to direct Internet traffic to a complainant’s own website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”). Complainant provides a screenshot showing Respondent’s use of the disputed domain name to resolve to Complainant’s webpage. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <qualcommtechnology.com> domain name in bad faith because Respondent uses an email address associated with the disputed domain name as part of a phishing scheme. Phishing constitutes evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA14009001581255 (Forum Oct. 29, 2014) (“The Panel finds that Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”). Complainant provides copies of a fax and emails showing that Respondent passes off as an employee of Complainant’s in an attempt to have funds and/or proprietary information transferred to Respondent. The Panel finds that this demonstrates bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent’s use of Complainant’s mark to redirect users to Complainant’s own webpage demonstrates actual knowledge of Complainant’s mark and business. The Panel agrees and finds further bad faith registration and use under Policy ¶ 4(a)(iii). See also 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.”).
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 <qualcommtechnology.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 29, 2020
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