Skywave Antennas, Inc. v. BAROUD RAYMOND
Claim Number: FA2208002008257
Complainant is Skywave Antennas, Inc. (“Complainant”), represented by Angela Holt of Bradley Arant Boult Cummings LLP, Alabama, USA. Respondent is BAROUD RAYMOND (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skyvvaveantennas.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 12, 2022; the Forum received payment on August 12, 2022.
On August 12, 2022, Namecheap Inc. confirmed by e-mail to the Forum that the <skyvvaveantennas.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 August 16, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 6, 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@skyvvaveantennas.com. Also on August 16, 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 September 12, 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, Skywave Antennas, Inc., operates in connection with antennas and engineering design services for custom antenna applications.
Complainant claims rights in the SKYWAVE ANTENNAS mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <skyvvaveantennas.com> domain name is identical or confusingly similar to Complainant’s SKYWAVE ANTENNAS mark as it incorporates the mark in a misspelled form and adds the generic top level domain (“gTLD”) “.com” to form.
Respondent lacks rights or legitimate interests in the <skyvvaveantennas.com> domain name. Complainant has not authorized or licensed Respondent to use its SKYWAVE ANTENNAS mark in the at-issue domain name, nor is Respondent commonly known by the at-issue 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 sends emails associated with the domain name to effectuate a phishing scheme. Additionally, Respondent uses the confusingly similar nature of the domain name to divert users to Respondent’s own webpage where the Respondent displays competing hyperlinks.
Respondent registered and uses the <skyvvaveantennas.com> domain name in bad faith. Respondent uses the domain name to display competing hyperlinks and perpetuate a phishing scheme via email associated with the confusingly similar domain name. Further, Respondent registered the at-issue domain name with actual knowledge of Complainant’s rights in the SKYWAVE ANTENNAS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in SKYWAVE ANTENNAS.
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 names after Complainant acquired rights in the SKYWAVE ANTENNAS trademark.
Respondent uses the at-issue domain names to display hyperlinks to competing entities and to engage in an email phishing scheme intent on swindling third-parties.
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 shows that it has a USPTO registration for its SKYWAVE ANTENNAS trademark. Any relevant national trademark registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
Respondent’s <skyvvaveantennas.com> domain name is confusingly similar to Complainant’s SKYWAVE ANTENNAS mark. The domain name contains an overt misspelling of Complainant’s trademark, less its domain name impermissible space, by substituting the mark’s “w” with a look-a-like “vv”. Complainant’s misspelled trademark is followed by the “.com” top-level to complete the domain name. The differences between the at-issue <skyvvaveantennas.com> domain name and Complainant’s SKYWAVE ANTENNAS trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) that Respondent’s <skyvvaveantennas.com> domain name is confusingly similar to Complainant’s SKYWAVE ANTENNAS trademark. See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”); see also, Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the 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, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <skyvvaveantennas.com> 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 the at-issue domain name identifies the domain name’s registrant as “BAROUD RAYMOND.” The record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <skyvvaveantennas.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of 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 at-issue domain name directs internet users to a website presenting pay-per-click links and furthers an email based phishing scheme whereby Respondent’s pretends to be Complainant. For example, Respondent stole the identity of a Complainant’s employee and used the deception to misdirect one of Complainant’s customers to change Complainant’s banking information to an account controlled by Respondent so that such customer would remit funds due Complainant to Respondent. Such criminal use of <skyvvaveantennas.com> constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”); See Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1403001550388 (Forum May 5, 2014) (“Respondent is using the domain name in emails to various IT hardware suppliers in an attempt to impersonate Complainant and defraud its customers. The domain name also resolved to a website similar to Complainant's website. The Panel found that such actions precluded a bona fide offer or fair use.”).
Given the foregoing, Complainant demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent has acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, and as mentioned above regarding rights and legitimate interests, Respondent uses its confusingly similar <skyvvaveantennas.com> domain names to address a webpage displaying hyperlinks to goods and/or services competing with those offered by Complainant. Doing so shows Respondent’s bad faith registration and use of the at-issue domain names under Policy ¶¶ 4(b)(iii) and (iv). See 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).”).
As also mentioned above, Respondent uses the at-issue domain name to perpetrate a phishing scheme. Respondent sends email hosted by the at-issue domain name and dressed to give the impression that it is originating from one of Complainant’s employees, to Complainant’s customer. Thereby, Respondent ultimately attempts to deceive third-parties into misdirecting funds to Respondent’s account. Using the <skyvvaveantennas.com> domain name to swindle third-parties indicates Respondent’s bad faith under Policy ¶ 4(a)(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).”); see also, Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also, Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
Moreover, Respondent registered <skyvvaveantennas.com> knowing that Complainant had trademark rights in the SKYWAVE ANTENNAS mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s evident targeting of Complainant’s SKYWAVE ANTENNAS trademark by passing itself off as Complainant as discussed elsewhere herein. Respondent’s prior knowledge of Complainant's SKYWAVE ANTENNAS trademark further indicates that Respondent registered and used the <skyvvaveantennas.com> domain name in 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").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <skyvvaveantennas.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 13, 2022
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