Acquiom Holdings LLC v. Daniel Chung / Acquion
Claim Number: FA2301002028874
Complainant is Acquiom Holdings LLC (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, US. Respondent is Daniel Chung / Acquion (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <srsacqulom.com>, registered with Google LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on January 24, 2023; Forum received payment on January 24, 2023.
On January 24, 2023, Google LLC confirmed by e-mail to Forum that the <srsacqulom.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google LLC 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 January 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 15, 2023 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@srsacqulom.com. Also on January 26, 2023, 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 February 21, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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
1. Respondent’s <srsacqulom.com> domain name is confusingly similar to Complainant’s SRS ACQUIOM mark.
2. Respondent does not have any rights or legitimate interests in the <srsacqulom.com> domain name.
3. Respondent registered and uses the <srsacqulom.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Acquiom Holdings LLC offers business technology and holds a registration for the SRS ACQUIOM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. no. 5,354,743, registered December 12, 2017).
Respondent registered the <srsacqulom.com> domain name on July 25, 2022, and uses it to pass off as Complainant and conduct a 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 Panel finds that Complainant has rights in the SRS ACQUIOM mark based upon registration with the USPTO. See Red Hat, Inc. v. Muhammad Shahzad, FA 1787738 (Forum June 19, 2018) (“Registration of a mark with multiple trademark agencies is sufficient to demonstrate rights to a mark per Policy ¶ 4(a)(i).”)
Respondent’s <srsacqulom.com> domain name uses a misspelled version of Complainant’s SRS ACQUIOM mark and simply adds the gTLD “.com”. These changes do not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”) Therefore, the Panel finds that Respondent’s <srsacqulom.com> domain name is confusingly similar to Complainant’s SRS ACQUIOM mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent does not have rights or legitimate interests in the <srsacqulom.com> domain name because Respondent is not commonly known by the domain name and is not licensed or authorized to use Complainant’s SRS ACQUIOM mark. The WHOIS information for the disputed domain name lists the registrant as “Daniel Chung / Acquion.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant contends that Respondent also does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, but rather uses it to pass off as Complainant in furtherance of a phishing scheme. Using a disputed domain name to pass off as a complainant in furtherance of a phishing scheme is not 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 DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”) Complainant provides evidence showing that Respondent uses the disputed domain name to send email communications impersonating Complainant. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
Complainant asserts that Respondent makes no active use of the disputed domain name and provides a screenshot of the resolving webpage, showing an error message “This site can’t be reached”. The Panel finds that this is further evidence that Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the disputed domain name to pass off as Complainant in furtherance of a phishing scheme for commercial gain. Passing off in furtherance of a phishing scheme evinces bad faith under Policy ¶ 4(b)(iv). See 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). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iv).
Complainant asserts that Respondent registered the <srsacqulom.com> domain name with knowledge of Complainant’s rights in the SRS ACQUIOM mark and cites Respondent’s misspelling of the mark. The Panel agrees and finds bad faith under 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 "actual knowledge of Complainant's mark when registering the disputed domain name").
Complainant contends that Respondent’s use of the disputed domain name to resolve to an inactive website also indicates bad faith registration and use under Policy ¶ 4(a)(iii). The Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (FORUM June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”)
Complainant also argues that Respondent engages in typosquatting. Typosquatting itself is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Finish Line, Inc. and its subsidiary Spike’s Holdings, Inc. v. XU SHUAI WEI / XUSHUAIWEI, FA1409001577968 (Forum Oct. 9, 2014) (“The <finishlne.com> domain name is a typosquatted version of the FINISH LINE mark, which further supports a finding of bad faith under Policy ¶ 4(a)(iii).”) Respondent replaces the letter “i” with the letter “l” in the disputed domain name, capitalizing on a common mistake, also demonstrating bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <srsacqulom.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 22, 2023
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