Agilent Technologies, Inc. v. james thomas
Claim Number: FA2010001917139
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Alexander J.A. Garcia of Perkins Coie LLP, United States. Respondent is james thomas (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agjlent.com> ("the Domain Name"), registered with NameCheap, Inc..
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 15, 2020; the Forum received payment on October 15, 2020.
On October 16, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <agjlent.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 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 10, 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@agjlent.com. Also on October 21, 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 November 12, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of the mark AGILENT registered, inter alia, in the USA for goods and services related to scientific research with first use recorded as 1999.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s mark only substituting the letter "I" for a letter "j" and adding the gTLD ".com".
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been used for confusing commercial pay-per-click links and for an email phishing scam. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith. Typosquatting is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark AGILENT registered, inter alia, in the USA with first use recorded as 1999.
The Domain Name registered in 2020 has been used for a phishing e mail scam and commercial pay per click links.
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 Domain Name consists of a misspelled version of the Complainant's AGILENT mark (which is registered in USA for goods and services relating to scientific research with first use recorded as 1999) and the gTLD ".com". The Panel agrees that misspellings such as substitution of a letter does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Coachella Music Festival LLC v Domain Administrator/China Capital Investment Limited, FA 1734230 (Forum Jul 17, 2017). As such the substitution of an "I" for a "j" in the Complainant’s mark does not prevent confusing similarity.
The gTLD ".com" does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the ALIGENT mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has been used in a fraudulent email scam using the AGILENT name and the misspelling thereof referred to above. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’)
It is clear from the evidence that the Respondent has used the pages attached to the Domain Name to link to commercial pay per link links. The usage of the Complainant’s mark which has a significant reputation in relation to services not connected with the Complainant is not fair and the page attached to the Domain Name does not make it clear that there is no commercial connection with the Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v domain admin / private registrations aktien Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of a complainant’s mark in a fraudulent e mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4(b)(iii).)
Further the Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
Respondent is using the Domain Name to point to pay per click links to make profit from promoting services not associated with the Complainant in a disruptive and confusing manner. Additionally, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site attached to the Domain Name and services offered on it under Policy 4 (b)(iv). See also Capital One Financial Corp v DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum Jun, 4, 2015).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(iii) and 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agjlent.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 12, 2020
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