Agilent Technologies, Inc. v. chen chen
Claim Number: FA2211002018601
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, US. Respondent is chen chen (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is/are <agilent-resources.net>, (‘the Domain Name’) registered with Gname 024 Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on November 1, 2022; Forum received payment on November 1, 2022.
On November 10, 2022, Gname 024 Inc confirmed by e-mail to Forum that the <agilent-resources.net> Domain Name is registered with Gname 024 Inc and that Respondent is the current registrant of the names. Gname 024 Inc has verified that Respondent is bound by the Gname 024 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 November 14, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 5, 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@agilent-resources.net. Also on November 14, 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 December 14, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.
Preliminary Issue: Required Language of Complaint
After the commencement of the case by Forum, correspondence was received from the Gname 024 Inc that stated that the language of the Registration Agreement was in Chinese. This information was received from Gname 024 Inc only after the case was commenced. The Complainant has produced evidence that the Respondent has registered a number of domain names in Latin characters and English making it more likely than not that the Respondent is conversant in English. In accordance with Rule 11, the Panel decides to continue the case with the English-language submission of the Complaint.
A. Complainant
The Complainant is the owner of the mark AGILENT registered, inter alia, in the USA for goods and services related to scientific research with first use recorded as 1999.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark containing it in its entirety and adding only a hyphen, the generic word ‘resources’ and the gTLD .net which does not prevent said confusing similarity.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been used to point to pornography related pay per click links which is not a bona fide or legitimate fair use under the Policy. It is registration and use in bad faith.
The Respondent has registered a number of domain names containing the English language trade marks of third parties and pointing them to pornography showing a pattern of bad faith activity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark AGILENT registered, inter alia, in the USA for goods and services related to scientific research with first use recorded as 1999.
The Domain Name registered in 2022 has been used to point to pornography related pay per click links. The Respondent has registered other domain names containing the trade marks of third parties and used them for the same purpose.
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 Domain Name consists of the Complainant's AGILENT mark (which is registered in USA for scientific research related products and services with first use recorded as 1999), a hyphen, the generic term ‘resources’ and the gTLD .net.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘resources’ to the Complainant's mark does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy.
Adding a hyphen does not prevent confusing similarity between the Domain Name and the Complainant’s mark. See Health Devices Corp. v. Aspen STC, FA 158254 (Forum July, 2003) (The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4(a)(i).).
The gTLD .net does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the Respondent to use its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See 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). The use of the Domain Name is commercial and so cannot be legitimate non commercial fair use.
The Domain Name has been used for commercial pay per click links to pornography sites.
The use of a domain name containing a third party trade mark to resolve to material of an adult sexual nature is not a bona fide use. See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA 1732665 (Forum July 7, 2017).
Additionally, use for a commercial site which offers pay per click links does not constitute a bona fide offering of goods or services or a legitimate non commercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of... domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Use of the Domain Name which contains the Complainant’s trade mark in relation to a web page hosting pornographic material is evidence of bad faith registration and use under Policy paragraph 4 (b)(iii). See Molson Canada 2005 v. JEAN LUCAS/DOMCHARME GROUP, FA 1412001596702 (Forum Feb 10, 2015).
Use for commercial pay per click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and can indicate actual knowledge of the Complainant and its business. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) regarding diversion to pay per click links.
Further, the Respondent owns a number of domain names containing the marks of third parties or typosquatting versions thereof suggesting a pattern of bad faith cybersquatting activity. See Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to Policy ¶ 4(b)(ii)). These names have all been pointed to commercial pay per click links pointing to pornography, again showing a pattern of bad faith activity.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agilent-resources.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 14, 2022
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