Hodgdon Powder Company, Inc. v. Legit Clovis
Claim Number: FA2201001980954
Complainant is Hodgdon Powder Company, Inc. (“Complainant”), represented by Timothy J. Feathers of Stinson LLP, Missouri, USA. Respondent is Legit Clovis (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hodgdon.org>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 18, 2022; the Forum received payment on January 18, 2022.
On January 19, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <hodgdon.org> 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 January 21, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 10, 2022 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@hodgdon.org. Also on January 21, 2022, 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 February 16, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
PRELIMINARY ISSUE: CONSENT TO TRANSFER
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 15(a) of the Rules thus permits a panel to grant a complainant’s requested relief without deference to Policy ¶¶ 4(a)ii or 4(a)iii, when a respondent consents to the requested relief. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also, Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant. . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”).
In the instant case Respondent appears, via its email response to the dispute resolution provider, to agree to transfer its at-issue domain name to Complainant. However, Respondent’s activity of record regarding the domain name demonstrates deliberate and intentional bad faith use of the at-issue domain name thereby discrediting Respondent’s email response which suggests inadvertence. Therefore, the Panel will in its discretion proceed with a substantive analysis of the dispute under the Policy notwithstanding that Respondent has stated its consent to transfer the domain name to Complainant. See Graebel Van Lines, Inc. v. Tex. Int’l Prop. Assocs., FA 1195954 (Forum July 17, 2008), (“Respondent has admitted in his response to the complaint of Complainant that it is ready to offer the transfer without inviting the decision of the Panel in accordance with the Policy. However, in the facts of this case, the Panel is of the view that the transfer of the disputed domain name deserves to be along with the findings in accordance with the Policy.”)
A. Complainant
Complainant contends as follows:
Complainant, Hodgdon Power Company, Inc., is a supplier of gunpowder.
Complainant has rights in the HODGDON mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <hodgdon.org> domain name is identical to Complainant’s HODGDON mark since it consists solely of the mark and merely adds the “.org” generic top level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <hodgdon.org> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized Respondent to use the HODGDON mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the domain to pass off as Complainant and phish for users’ personal and financial information.
Respondent registered and uses the <hodgdon.org> domain name in bad faith. Respondent uses the disputed domain name to pass off as Complainant and phish for users’ personal and financial information. Additionally, Respondent had knowledge of Complainant’s rights in the HODGDON mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However in an email to the domain name dispute resolution provider Respondent response to his receipt of the Complaint by stating:
My sincere apology to the Hodgdon Com.
How can we settle this.
Am willing to give out the domain name.
Complainant has trademark rights in the HODGDON mark.
Respondent has not been authorized to use any of Complainant’s trademarks.
Respondent registered the at-issue domain name after Complainant acquired rights in HODGDON.
Respondent uses the domain to pass off as Complainant to commit theft by fraud and phish for users’ personal and financial information.
Respondent express its consent to transfer the at-issue domain name to Complainant.
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 at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration of HODGDON is sufficient to established Complainant’s rights in such mark for the purposes of Policy 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The at-issue domain name contains Complainant’s HODGDON trademark followed by the top-level domain name “org.” The differences between the <hodgdon.org> domain name and Complainant’s trademark are insufficient to distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that <hodgdon.org> is confusingly similar to Complainant’s HODGDON mark. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”); see also 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 gTLD was insufficient to differentiate the disputed domain name from the mark).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for <hodgdon.org> indicates that “Legit Clovis” is the domain name’s registrant. Further, there is nothing in the record that shows that Respondent is otherwise known by the <hodgdon.org> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <hodgdon.org> domain name is used to facilitate a phishing scheme whereby Respondent passes itself off as Complainant in an attempt to induce internet users to give up personal information to purchase products from a website that appears to be Complainant’s official website. However, such products will never be delivered and defrauded customers will be left with no recourse to have their money refunded. Respondent’s use of the at-issue domain name to pass itself off as Complainant defraud third parties is indicative of neither a bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶¶ 4(c)(iii). See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”); see also 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.”); see also, Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <hodgdon.org> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that compel the Panel to conclude that Respondent has acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent’s use of the at-issue domain name to pass itself off as Complainant in furtherance of theft by fraud and a phishing scheme designed to misappropriate personal financial information shows Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(a)(iv) and otherwise. See Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant’s trademark suggests Respondent’s bad faith); see also, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also, United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the HODGDON mark when it registered <hodgdon.org> as a domain name. Respondent’s actual knowledge of Complainant’s trademark is garnered from the notoriety of Complainant’s trademark; from Respondent’s inclusion of the entire mark in the at-issue domain name; and from Respondent’s use of the confusingly similar domain name and website to pass itself off as Complainant in furtherance of fraud. Respondent’s registration and use of <hodgdon.org> with knowledge of Complainant’s rights in the HODGDON trademark and thus in Respondent’s <hodgdon.org> domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering 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 <hodgdon.org> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 17, 2022
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