Exergen Corporation v. Leila Yang
Claim Number: FA2009001913559
Complainant is Exergen Corporation ("Complainant"), represented by Samuel J. Sussman of Hamilton, Brook, Smith & Reynolds, P.C., Massachusetts, USA. Respondent is Leila Yang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <exerqen.com>, registered with NameCheap, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 24, 2020; the Forum received payment on September 24, 2020.
On September 25, 2020, NameCheap, Inc. confirmed by email to the Forum that the <exerqen.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 October 1, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 21, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@exerqen.com. Also on October 1, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 27, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 manufactures infrared radiation scanners, thermometers, and related devices. Complainant uses the EXERGEN mark in connection with its goods and services, and owns U.S. registrations for the mark in standard character form issued in 2003 and 2004.
Respondent registered the disputed domain name <exerqen.com> via a privacy registration service in July 2020. The domain name is not being actively used for a website; it currently resolves to an empty file directory. It has been used in email messages sent to customers of Complainant, in what appear to be fraudulent attempts to divert payments intended for Complainant. Complainant states that it has not licensed or otherwise permitted Respondent to use its mark, and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <exerqen.com> is confusingly similar to its EXERGEN mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <exerqen.com> corresponds to Complainant's registered EXERGEN trademark, substituting a letter "Q" for the "G" and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Teleflex Inc. v. Henry / LLGsuplies, FA 1912423 (Forum Oct. 18, 2020) (finding <taleflex.com> confusingly similar to TELEFLEX); Hologic, Inc. v. AWS 001, FA 1902470 (Forum July 31, 2020) (finding <holoqic.com> confusingly similar to HOLOGIC). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use is in connection with a fraudulent scheme, impersonating Complainant or its employees or distributors in email correspondence soliciting payments from Complainant's customers. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Teleflex Inc. v. Henry / LLGsuplies, supra (finding lack of rights or interests in similar circumstances); Hologic, Inc. v. AWS 001, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name that corresponds to Complainant's well-known mark, but for the introduction of a typographical error; and is using the domain name to impersonate Complainant for fraudulent purposes, sending email in Complainant's name as part of a phishing scheme. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Teleflex Inc. v. Henry / LLGsuplies, supra (finding bad faith in similar circumstances); Hologic, Inc. v. AWS 001, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <exerqen.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 27, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page