Textron Innovations Inc. v. Suhel Khan
Claim Number: FA2210002014941
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick, Indiana, USA. Respondent is Suhel Khan (“Respondent”), South Africa.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <txtavn.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 Forum electronically on October 6, 2022; Forum received payment on October 6, 2022.
On October 8, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <txtavn.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 October 17, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 7, 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@txtavn.com. Also on October 17, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 8, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is a pioneer of the diversified business model. Founded in 1923, Textron has grown into a network of businesses with total revenues of $12.4 billion. Textron’s companies include some of the most respected global brands in transportation, including Bell, E-Z-GO golf carts and Cessna aircraft.
The at-issue domain name is confusingly similar to Complainant’s TEXTRON and TXT marks as it wholly incorporates the TXT mark and adds the “avn” generic or descriptive term. Complainant uses the domain name <txav.com> to host email.
Respondent has no rights or legitimate interests in the at-issue domain name. Respondent is not commonly known by the domain name. Respondent is not using the domain name in connection with any bona fide offering of goods and services or for any legitimate or fair use because the at-issue domain name does not resolve to an active website. Respondent is utilizing the domain in bad faith to conduct phishing scams and impersonate Textron executives by posing as an agent of Complainant using the at-issue domain name as part of an email address. Respondent registered the domain name with a domain name privacy service.
Respondent registered and uses the at-issue domain name in bad faith. Respondent conducts an email phishing scam and impersonates Complainant’s employees for Respondent’s commercial gain by defrauding third parties into misdirecting funds to Respondent’s account. Respondent fails to make an active use of the domain name. Respondent had actual knowledge of Complainant’s rights in the TXT and TEXTRON marks prior to registration of the at-issue domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TXT trademark.
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 TXT trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant in furtherance of an email phishing scheme.
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 TXT 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 <txtavn.com> domain name is confusingly similar to Complainant’s TXT mark. The domain name contains Complainant’s trademark followed by the term “avn,” a term suggesting Complainant’s aviation business line with all followed by the “.com” top-level to complete the domain name. The differences between the at-issue <txtavn.com> domain name and Complainant’s TXT 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 <txtavn.com> domain name is confusingly similar to Complainant’s TXT trademark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also, Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant).
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 <txtavn.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 <txtavn.com> ultimately identifies the domain name’s registrant as “Suhel Khan” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <txtavn.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 uses the at-issue domain name to further an email based phishing scheme whereby Respondent pretends to be Complainant. Respondent uses email from the at-issue domain name to pretend to be one of Complainant’s employees and then deceive third parties into misdirecting funds to an account controlled by Respondent. Such criminal use of <txtavn.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 also, Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also, 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 legitimate 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 permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent uses <txtavn.com> to pass itself off as Complainant via email to further a phishing scheme. Respondent’s phishing campaign uses the at-issue domain name to falsely impersonate an employee/agent of Complainant. While disguised as Complainant’s employee, Respondent then dupes such third parties into believing that Complainant desires that certain funds be directed to a particular account when in fact such account is controlled by Respondent and not Complainant. Respondent’s use of the at-issue domain name in this manner is disruptive to Complainant’s business and shows Respondent’s attempt to capitalize on the confusion Respondent created between the at-issue domain name and Complainant’s trademark. Respondent’s use of the domain name thus shows Respondent’s bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); 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 per Policy ¶ 4(b)(iv)). The fact that Respondent is engaging in phishing itself shows Respondent’s bad faith registration and use of the at-issue domain name. 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).
Moreover, Respondent had actual knowledge of Complainant’s rights in the TXT mark when it registered <txtavn.com> as a domain name. Respondent’s actual knowledge is evident from Respondent’s use of Complainant’s trademark in the at-issue <txtavn.com> domain name to pass itself off as Complainant via email and thereby perpetrate fraud as discussed elsewhere herein. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such 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").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <txtavn.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 8, 2022
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