Keysight Technologies v. josh benson
Claim Number: FA2205001995855
Complainant is Keysight Technologies (“Complainant”), represented by Alexandra Hodson of Holland & Hart LLP, Colorado, USA. Respondent is josh benson (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <keysight.live>, 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 May 10, 2022; the Forum received payment on May 10, 2022.
On May 11, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <keysight.live> 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 May 13, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 2, 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@keysight.live. Also on May 13, 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 June 9, 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.
A. Complainant
Complainant contends as follows:
Complainant, Keysight Technologies, is a U.S. based company that manufactures test and measurement equipment and related software focused on electronics and radio fields.
Complainant has rights in the KEYSIGHT mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <keysight.live> domain name is identical or confusingly similar to Complainant’s mark because it contains the KEYSIGHT mark in whole and adds the “.live” generic top level domain (“gTLD”) to form the at-issue domain name.
Respondent lacks rights and legitimate interests in the <keysight.live> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its KEYSIGHT mark in the domain name. Respondent does not use the domain name in connection with any bona fide offering of goods or services, nor a legitimate non-commercial or fair use. Rather, Respondent uses the at-issue domain name to effectuate a phishing scheme. Additionally, Respondent has failed to make active use of the disputed domain name’s resolving website and instead uses the at-issue domain to redirect uses to Complainant’s competitor’s websites through advertisements.
Respondent registered and uses the <keysight.live> domain name in bad faith. First, Respondent uses the at-issue domain name to pass itself off as Complainant to perpetuate a phishing scheme. Moreover, Respondent uses the disputed domain name to feature hyperlinks to competing websites for commercial gain. Finally, Respondent registered and uses the domain name with actual knowledge of Complainant’s rights in the KEYSIGHT mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, email to the dispute resolution provider and from Respondent’s email address states that “My laptop was stolen” and “My email has Been [sic] compromised” without more. The email does not identify its sender except by email address.
Complainant has trademark rights in the KEYSIGHT mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the KEYSIGHT trademark.
Respondent uses the at-issue domain name to display hyperlinks to third party competing websites and to impersonate Complainant in email in furtherance of fraud.
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 name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the KEYSIGHT mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”).
Respondent’s <keysight.live> domain name consists of Complainant’s entire KEYSIGHT trademark followed by the “.live” top-level domain name. The addition of a top-level domain name to Complainant’s trademark fails to distinguish the domain name from Complainant’s trademark the purposes of the Policy. Therefore, the Panel concludes that Respondent’s <keysight.live> domain name is confusingly similar to KEYSIGHT pursuant to Policy ¶ 4(a)(i). See Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”).
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, 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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Josh Benson” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <keysight.live> domain name or by KEYSIGHT. The Panel therefore concludes that Respondent is not commonly known by <keysight.live> for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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).
Respondent’s at-issue domain name is also used to host email pretending to be from Complainant in furtherance of a phishing scheme. Using the at-issue domain name to impersonate Complainant and phish for private information as further discussed below shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Respondent’s <keysight.live> domain name also addresses a website offering pay-per-click links to third-parties in competition which Complainant. Likewise, such use of the confusingly similar <keysight.live> domain name indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith under Policy ¶ 4(a)(iii).
Respondent is using the at-issue domain name to provide it with an email domain that is confusingly similar to one that Complainant might actually use. Respondent then falsifies email sent from the confusingly similar email domain and poses as Complainant so that it may perpetrate a foul scheme to extract personal information and financial data from individuals seeking a job with Complainant. Indeed, Respondent, via an elaborate ruse, tricks unwitting job seekers into believing that they are applying for employment with Complainant when in fact they are dealing with Respondent so that it may conducts an online interview of the job seeker. Respondent uses its chat based interrogation to gain access to the job seeker’s private data. Respondent’s passing off as Complainant to defraud third parties undeniably shows Respondent’s bad faith registration and use of the <keysight.live> domain name per Policy ¶ 4(a)(iii). See Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the disputed domain name to send emails to internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process).
Additionally, Respondent’s use of the at-issue domain name to address a webpage displaying pay-per-click links is disruptive to Complainant’s business and demonstrates Respondent’s intent to attract internet users for commercial gain by trading off Complainant’s KEYSIGHT trademark. Thus Respondent’s bad faith registration and use of the domain name is further revealed under Policy ¶¶ 4(b)(iii) and (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”); see also Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the KEYSIGHT mark when it registered <keysight.live> as a domain name. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of <keysight.live> as an email domain to pass itself off as Complainant and defraud third parties as discussed elsewhere herein. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith registration and use of the <keysight.live> domain name 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 <keysight.live> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 10, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page