Agilent Technologies, Inc. v. Najam Ishaq
Claim Number: FA2209002010910
Complainant is Agilent Technologies, Inc. ("Complainant"), represented by Julie A. Kent of Holland & Hart LLP, Colorado, USA. Respondent is Najam Ishaq ("Respondent"), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agilentpk.com>, registered with Launchpad.com 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on September 6, 2022; Forum received payment on September 6, 2022.
On September 6, 2022, Launchpad.com Inc. confirmed by email to Forum that the <agilentpk.com> domain name is registered with Launchpad.com Inc. and that Respondent is the current registrant of the name. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com 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 September 7, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 27, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@agilentpk.com. Also on September 7, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 3, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 is a Fortune 500 company that provides instruments, services, consumables, applications, and expertise to customers in 110 countries. Complainant employs more than 17,000 people worldwide, and its revenues in 2021 exceeded $6.3 billion. Complainant has used the AGLIENT mark in connection with its products and services since 1999. Complainant owns longstanding United States trademark registrations for AGILENT in standard character form and similar registrations in the European Kingdom and other jurisdictions worldwide.
Respondent registered the disputed domain name <agilentpk.com> in August 2022. The domain name does not resolve to a website, although it is configured with active MX (mail exchanger) records, suggesting an intent to use it for email. Complainant asserts that Respondent is using or intends to use the domain name in email messages to pass itself off as Complainant in connection with a fraudulent phishing scheme. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and is not permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <agilentpk.com> is confusingly similar to its AGILENT mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <agilentpk.com> incorporates Complainant's registered AGILENT trademark, adding the geographic abbreviation "PK" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Agilent Technologies, Inc. v. 杨阳, FA 2007236 (Forum Sept. 6, 2022) (finding <agilentas.com> confusingly similar to AGILENT); Agilent Technologies, Inc. v. Ryan Kral / Horse Back LLC, FA 2007011 (Forum Aug. 30, 2022) (finding <agilentusa.com> confusingly similar to AGILENT); Bridgestone Corp. v. Saif Ashfaq, FA 1735354 (Forum July 6, 2017) (finding <bridgestonepk.com> confusingly similar to BRIDGESTONE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. Respondent does not appear to have made any active use of the domain name, aside from Complainant's allegation that the domain name is being used or prepared for use in connection with a phishing scheme. Such use would not give rise to rights or legitimate interests under the Policy. See, e.g., Nasdaq, Inc. v. Lisa Katz / Domain Protection LLC, FA 1937131 (Forum Apr. 21, 2021) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name that appends a geographic abbreviation to Complainant's well-known mark. Respondent does not appear to have made any active use of the domain name, and has not come forward to explain its reasons for selecting a domain name incorporating Complainant's mark nor its intended use of the name. The Panel is reluctant to infer an intent to engage in phishing or other fraudulent activity from the mere fact that MX records have been created. See Nasdaq, Inc. v. Lisa Katz / Domain Protection LLC, supra. Nonetheless, under the circumstances presented here, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant's well-known mark and is maintaining the domain name for that purpose. See, e.g., Enel S.p.A. v. Ming Wang, D2022-2539 (WIPO Sept. 1, 2022) (finding bad faith registration and use in similar circumstances); Oracle International Corp. & NetSuite, Inc. v. Gna Jobs, FA 1986029 (Forum Mar. 31, 2022) (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agilentpk.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 4, 2022
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