Agilent Technologies, Inc. v. andraes andren
Claim Number: FA2302002030792
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, Colorado. Respondent is andraes andren (“Respondent”), NG.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agilenit.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 February 7, 2023; Forum received payment on February 7, 2023.
On February 8, 2023, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <agilenit.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 February 8, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 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@agilenit.com. Also on February 8, 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 March 5, 2023, 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, Agilent Technologies, Inc., offers a wide variety of goods and services in the life sciences, diagnostics, and the laboratory and scientific research industries.
Complainant asserts rights to the AGILENT mark based upon registration with the United States Patent and Trademark Office (“USPTO”)
Respondent’s <agilenit.com> domain name is confusingly similar to Complainant’s mark as it contains the misspelled AGILENT mark, merely adding the letter “i” and the generic top-level domain (“gTLD”) “.com” to form the at-issue domain name.
Respondent does not have rights or legitimate interests in the <agilenit.com> domain name. Respondent is not licensed or authorized to use the AGILENT mark and is not commonly known by the at-issue domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the at-issue domain name to pass off as Complainant in furtherance of a fraudulent email scheme. Furthermore, Respondent inactively holds the at-issue domain name.
Respondent registered and uses the <agilenit.com> domain name in bad faith. First, Respondent uses the at-issue domain name to pass off as Complainant in furtherance of an email scheme aimed at extracting funds and/or information from third-parties. Second, Respondent inactively holds the disputed domain name. Third, Respondent is engaged in typosquatting. Finally, Respondent registered the <agilenit.com> domain name with actual knowledge of Complainant’s rights in the AGILENT mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the AGILENT mark.
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 AGILENT trademark.
Respondent uses the at-issue domain name to facilitate Respondent impersonating Complainant via email in furtherance of fraud.
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 along with multiple other national trademark registrations for its AGILENT trademark. Any of such registrations is sufficient to demonstrate Complainant’s rights in the AGILENT mark under Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
Respondent’s <agilenit.com> domain name consists of a recognizable misspelling or mistyping of Complainant’s AGILENT trademark with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel concludes that Respondent’s <agilenit.com> domain name is confusingly similar to AGILENT pursuant to 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.’”); see also 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.’ The disputed domain name incorporates the mark while adding the letter “i” and the generic top-level domain (“gTLD”) “.com” to form the disputed domain name. This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”).
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 at-issue 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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “andraes andren” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <agilenit.com> domain name or by AGILENT. The Panel therefore concludes that Respondent is not commonly known by <agilenit.com> for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, 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 at-issue 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).
Respondent’s at-issue domain name is used to host email pretending to be from Complainant in furtherance of a scheme designed to deceive Complainant’s customers and/or business associates into sending funds to Respondent as well as to extract private data from such parties. Using the at-issue domain name to impersonate Complainant in furtherance of fraud shows neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”); ). See also, 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.”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without being exhaustive, there are multiple circumstances from which the Panel may conclude that Respondent acted in bad faith under Policy ¶ 4(a)(iii).
Respondent is using the at-issue domain name to provide it with an email domain that is confusingly similar to one that Complainant might actually use in commerce. Respondent falsifies email it sends from the confusingly similar email <agilenit.com> domain name to pose as Complainant so that it may perpetrate a scheme to extract sensitive personal or financial information and/or swindle illegitimate payments from innocent customers and/or business associates of Complainant. Respondent’s passing itself off as Complainant to defraud third-parties shows Respondent’s bad faith registration and use of the <agilenit.com> domain name per Policy ¶ 4(a)(iii). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the at-issue 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 Smiths Group plc v. Snooks, FA 1372112 (Forum Mar. 18, 2011) (finding that the respondent’s attempt to impersonate an employee of the complainant was evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Next, Respondent engages in typosquatting by registering and using a domain name confusingly similar to Complainant’s trademark that consists of a recognizable misspelling or mistyping of Complainant’s AGILENT mark. In forming the at-issue domain name, Respondent misspells/mistypes Complainant’s AGILENT trademark by inserting the letter “I” into Complainant’s mark. Complainant’s mark is nonetheless apparent in the domain name such that the misspelling might be overlooked by one casually reading the domain name. Typosquatting in itself is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name’s registrant.”); see also, Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also, Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”)
Moreover, Respondent had actual knowledge of Complainant’s rights in the AGILENT mark when it registered <agilenit.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark; from Respondent’s overt misspelling of Complainant’s trademark in forming the domain name; and from Respondent’s use of the domain name to impersonate Complainant via email. Respondent’s prior knowledge further indicates Respondent’s bad faith registration and use of <agilenit.com> 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); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION 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 <agilenit.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 5, 2023
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