Allegheny Technologies Incorporated v. Mark derik / aqauhaus
Claim Number: FA2207002003387
Complainant is Allegheny Technologies Incorporated (“Complainant”), represented by Desiree Moore of K&L Gates LLP, Illinois, USA. Respondent is Mark derik / aqauhaus (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aitimetals.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 7, 2022. The Forum received payment on July 7, 2022.
On July 13, 2022, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to the Forum that the <aitimetals.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 July 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 4, 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@aitimetals.com. Also on July 15, 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 August 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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, Allegheny Technologies, Inc., is a specialty metals company that produces high-performance materials, components, advanced alloys and solutions for worldwide aerospace, defence, oil & gas, chemical, electrical energy, and medical industries. Complainant operates a website at “www.atimetals.com” for its business purposes.
Complainant has rights in the ATI METALS mark through registrations with multiple trademark agencies. Respondent’s <aitimetals.com> domain name is identical or confusingly similar to Complainant’s ATI METALS mark.
Respondent lacks rights and legitimate interests in the <aitimetals.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its mark in the domain name. Respondent is not using the domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use by inactively holding the domain name and impersonating Complainant while phishing for information.
Respondent registered the <aitimetals.com> domain name in bad faith with actual knowledge of Complainant’s rights in the mark. Respondent is using the domain name in bad faith to disrupt Complainant’s business, diverting users for commercial gain and creating a likelihood of confusion by passing itself off as Complainant while phishing for information. Respondent failed to respond to Complainant’s cease-and-desist letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the ATI METALS mark through registrations with multiple trademark agencies, including in the United Kingdom, Reg. No. UK00909243551, registered on February 15, 2011. The Panel finds Respondent’s <aitimetals.com> domain name to be virtually identical and confusingly similar to Complainant’s ATI METALS mark as it incorporates the mark in its entirety while adding the letter “i”, which does not distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <aitimetals.com> domain name was registered on September 7, 2021, many years after Complainant began using the ATI METALS mark. Between October 2021 and January 2022, the domain name was used for emails impersonating employees of Complainant and designed to induce the recipients to divert payments intended for Complainant into bank accounts nominated by Respondent.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the <aitimetals.com> domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s ATI METALS mark when Respondent registered the <aitimetals.com> domain name and that Respondent has registered and is using the domain name in bad faith for the purpose of fraudulently obtaining payments by impersonating employees of Complainant.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aitimetals.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: August 11, 2022
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