Aon Corporation v. solomon ibeka
Claim Number: FA2009001912615
Complainant is Aon Corporation (“Complainant”), represented by Joel Leviton of STINSON LLP, Minnesota, USA. Respondent is solomon ibeka (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aonconsuitinggroup.com>, registered with GoDaddy.com, 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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 16, 2020; the Forum received payment on September 16, 2020.
On September 17, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <aonconsuitinggroup.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 18, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 8, 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@aonconsuitinggroup.com. Also on September 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 October 9, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC as Panelist.
On October 10, 2020 pursuant to Rule 12 of ICANN’s Uniform Domain Name Dispute Resolution Policy, the Panel hereby requests the Complainant to provide evidence of use of the disputed domain name and have it e-mailed to the Forum no later than October 13, 2020, allowing Respondent to make submissions thereon on or before October 16, 2020.
On October 12, 2020 Complainant timely submitted the requested the additional information.
On October 17, 2020, having received no submissions or communication from Respondent, the Panel proceeded to decide this Complaint.
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 claims rights in the AON trademark established through its ownership of its portfolio of registered trademarks described below and its use of the mark inter alia in its international consulting business.
Complainant submits that the disputed domain name <aonconsuitinggroup.com> is confusingly similar to its AON mark as it incorporates its distinctive AON mark with an obvious misspelling of the terms “consulting group” and argues that such coupling adds to the confusing similarity because Complainant offers consulting services under the AON mark throughout the world.
In this regard Complainant refers to its website at <www.aon.com> and also cites the decision in H-D Michigan, LLC v. Vietri Anwari d/b/a BLBiz, FA 1364034 (Forum Jan. 19, 2011) (holding that addition of generic term “store” did not sufficiently distinguish the respondent’s domain name from the complainant’s HARLEYDAVIDSON mark).
Complainant further submits that the addition of the generic Top Level Domain (“gTLD”) extension <.com> does not distinguish the disputed domain name from Complainant’s AON mark. See Hugh Jackman v. Peter Sun, FA 248716 (Forum May 10, 2004) (“Generic top-level domains are irrelevant in determining whether a domain name is identical to another’s mark.”).
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that Respondent is not commonly known as <aonconsuitinggroup.com>; and that the WhoIs record for the disputed domain name does not identify “Aon Consuiting Group” as the registrant.
Complainant argues that the failure of the WhoIs record to imply that Respondent is commonly known as <aonconsuitinggroup.com> suggests that Respondent is not known by this designation. See Broadcom Corp. v. Ibecom PLC, FA361190 (Forum Dec. 22, 2004) (finding no rights or legitimate interests where there was nothing in the record to indicate that Respondent was commonly known by the domain name).
Complainant adds that Respondent is not authorized or licensed by Complainant to use its AON trademark or any variation thereof or in any form.
Complainant also alleges that Respondent is using the disputed domain name as part of an email address to convey the false impression that the owner of the email address is associated with Complainant and that such use of the disputed domain name for the purposes of in furtherance of a phishing scheme does not create any rights or legitimate interests
Complainant further submits that Respondent is not using, and has not used, the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (“Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
Complainant alleges that the disputed domain name was registered and is being used in bad faith arguing that the registration of disputed domain name that is confusingly similar to Complainant’s AON mark, despite knowledge of the mark holder’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.”).
Complainant submits that the registrant of the disputed domain name was undoubtedly well aware of Complainant, because he registered the disputed domain name containing the AON mark AON which was used as an email address to trick supposed employment candidates into believing they were communicating with Complainant. See Slep-Tone Entertainment Corp. v. Sound Choice Disc Jockeys Inc., FA 93636 (Forum Mar. 13, 2000) (“The domain name ‘sound-choice.com’ should be considered as having been registered and being used in bad faith because Respondent failed to discharge its responsibility to select, register and use a domain name that does not infringe the rights of a third party.”)
Complainant adds that the disputed domain name is being used in bad faith to impersonate Complainant in a phishing scheme attempt to get potential employment candidates to share personal information with, and make unauthorized payments to Respondent.
In support of this assertion, Complainant quotes in extenso from an undated email which it states purported to emanate from Respondent.
The author of the email purported to offer the addressee a position with a named potential third-party employer in the United Arab Emirates for whom the sender claimed to be recruiting. In the quotation, the offer is stated to be based on the addressee’s previous work and experience. Complainant states that a document described as a “Prototype” of a “Contract Passage” was attached to the email.
The addressee was invited to sign and return the contract to the sender together with personal information, specifically a copy a national identity cars (passport, national certificate/birth certificate), copy academic certificates, name, address, contact person in case of a medical emergency and a copy colored passport size photograph.
The quoted passage includes a reference to the name and a postal address for the “AON Consulting Group” in the United Arab Emirates, the name and contact telephone details of a named contact person, and two email addresses for him, one of which uses the disputed domain name.
The Amended Complaint also refers to an email exchange a copy of which is exhibited in an annex to the Complaint. The email emanates from a third-party email address, but the name of the sender is stated to be “AON Consulting Group”. The sender provides bank account details of a third party and requests the addressee to transfer funds to his account.
In an email response to the Panel’s request for additional information about the use of the disputed domain name, Complainant provided a .pdf printout of the location to which the disputed domain name resolved on October 12, 2020 which is the registrar’s holding page with “related links” to random topics which appear to be unrelated to Complainant or its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
C. Additional Submissions
In response to the Order dated October 10, 2020, Complainant hereby submitted a .pdf printout of the website to which the disputed domain name resolved on October 12, 2020, which is a holding page for the registrar and reiterated its assertion that Respondent used the disputed domain name as the root for an email address to operate a phishing scheme.
Respondent did not avail of the opportunity to make submissions on Complainant’s additional submissions.
Complainant provides a range of professional consulting services identified by the mark AON for which is has an international portfolio of registered trademarks and service marks.
A representative selection of Complainant’s registrations for the AON mark and marks that incorporate the term AON include:
· United States registered service mark AON, registration number 1,496,123, registered on the Principal Register on July 12, 1988 for services in international class 36;
· United States registered trademark and service mark AON, registration number 3,254,615 registered on the Principal Register on June 26, 2007 for good and services in international classes 36, 35, 36, 41, 42 and 45;
· United Kingdom registered Trade Mark, AON TRIO registration number UK00003109658, registered on August 21, 2015 in class 36;
· European Union Trade Mark AON, registration number 009620246, registered on June 3, 2011 for goods and services in classes 16, 21, 25, 26, 28;
· Australian registered trademark AON, registration number 707745, registered from 3 May 1996 for services in classes 35 and 36.
Complainant has an established Internet presence and operates it main website at <www.aon.com>.
The disputed domain name was registered on May 5, 2020 and resolves to the Registrar’s holding page.
There is no information available about Respondent except for that provided in the Complaint as amended, the Registrar’s WhoIs and the information provided by the Registrar in response to the request from the Forum to provide details of the registration of the disputed domain name. The identity of the registrant was not disclosed on the Registrar’s WhoIs but Respondent was identified as the registrant by the Registrar in said response.
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 Complainant’s AON trademark and the term “consuiting” and the word “group” in combination with the gTLD <.com> extension.
The term “consuiting” is an obviously intentional misspelling of the word “consulting”.
Complainant’s trademark is the dominant and only distinctive element of the disputed domain name. The other elements either separately or in combination add no distinctive character to the disputed domain name.
In these proceedings the gTLD extension <.com> should be disregarded when determining confusing similarity, because in the circumstances of this case, it would be considered as a standard technical requirement for registration of a domain name.
This Panel finds therefore that the disputed domain name is confusingly similar to the trademark in which Complainant has rights and Complainant has succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing
· that Respondent is not commonly known as <aonconsuitinggroup.com>;
· that the WhoIs record for the domain name does not identify “Aon Consuiting Group” as the registrant;
· that the failure of the WhoIs record to imply that Respondent is commonly known as <aonconsuitinggroup.com> suggests that Respondent is not known by this designation;
· that Respondent is not authorized or licensed by Complainant to use its AON trademark or any variation thereof or in any form;
· that Respondent is using the disputed domain name as part of an email address to convey the false impression that the owner of the email address is associated with Complainant and that such use of the disputed domain name for the purposes of in furtherance of a phishing scheme, more fully described below does not create any rights or legitimate interests in the disputed domain name;
· that Respondent is therefore not using, and has not used, the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).
It is well established that if a complainant makes out a prima facie case, the burden of production shifts to the respondent to prove his rights or legitimate interests in the disputed domain name. Respondent has failed to file any Response to the Complaint or provide any defense to Complainant’s allegations and so has failed to discharge the burden.
In the circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant has alleged but has not provided sufficient evidence to prove its assertion that the disputed domain name has been used in a phishing scam.
There is an extensive quotation from an email that is presented in the Amended Complaint as evidence of the scheme. This email has not been adduced in evidence in the documents exhibited by Complainant.
In support of its allegation that Respondent is engaged in a phishing scam, Complainant has exhibited three redacted copy emails in the annex to the Complaint. All are dated May 15, 2020. These emails are an exchange between two persons, relating to a request for the transfer of monies. The requesting party parties identifies himself as “AON Consulting Group”. The identity of the other party is redacted.
None of the emails however were sent either to or from an email address formed by the disputed domain name. In fact, while the emails refer to “AON Consulting Group” as a sender’s name, none of the three emails mention the disputed domain name.
In response to the Panel’s request for further information of the use of the disputed domain name Complainant provided a copy of the Registrar’s holding web page to which the disputed domain name resolved on October 12, 2020. The holding page contained links which appear to be selected randomly and have no obvious connection with Complainant. The Additional Submissions did not provide any evidence of use of the disputed domain name for phishing.
Nonetheless, Complainant has adduced evidence that the disputed domain name is being passively held and does not resolve to an active website. The relevant section of the WIPO Jurisprudential Overview 3.0 states:
“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.”
Having reviewed the record, and applying the principles described in the WIPO Jurisprudential Overview 3.0, this Panel is satisfied that the disputed domain name was registered in bad faith.
The disputed domain name intentionally incorporates Complainant’s distinctive AON mark. Respondent has failed to respond to Complainant’s very serious allegations of phishing. Respondent has chosen to conceal his identity on the published WhoIs. Additionally, it is implausible that the disputed domain name could be put to any good faith use because of the reputation of Complainant in the provision of consulting services.
This Panel is fortified in reaching this conclusion by the fact that the registrant of disputed domain name chose the term “consuiting” rather than the word “consulting” as an element of the disputed domain name. This Panel finds that the choice and registration of this misspelling by the registrant was an example of typosquatting and it is improbable that the disputed domain name was registered for any purpose other than to create confusion with Complainant’s name and consulting business.
As this Panel finds therefore that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third and final element of the test in Policy ¶ 4(a)(iii) and is entitled to succeed in its application for transfer of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aonconsuitinggroup.com> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: October 17, 2020
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