The Timken Company v. Maria Balog
Claim Number: FA2302002033149
Complainant is The Timken Company (“Complainant”), represented by Thomas A. Agnello of Michael Best & Friedrich LLP, Wisconsin. Respondent is Maria Balog (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <timkenco.com>, registered with Key-Systems GmbH.
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 23, 2023; Forum received payment on February 23, 2023.
On February 24, 2023, Key-Systems GmbH confirmed by e-mail to Forum that the <timkenco.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 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@timkenco.com. Also on February 27, 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 25, 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, The Timken Company manufactures bearings, power transmission products, and related goods.
Complainant asserts rights in the TIMKEN mark based upon the mark’s registration with the United States Patent and Trademark Office (“USPTO”)
Respondent’s
<timkenco.com> domain name is confusingly similar to
Complainant’s TIMKEN trademark
because the domain name incorporates the mark in its entirety and adds the
abbreviation for the word company “co” and the generic top-level domain name (“gTLD”)
“.com”.
Respondent does not have rights or legitimate interests
in the <timkenco.com> domain name. Respondent is not licensed or authorized
to use Complainant’s TIMKEN
mark and is not commonly known by the at-issue
domain name. Respondent also does not use the domain name for any bona fide offering
of goods or services or legitimate noncommercial or fair use. Rather,
Respondent uses the domain name to attempt passing off as Complainant in
furtherance of a phishing scheme.
Respondent registered and uses the <timkenco.com> domain name in bad faith. Respondent uses the domain name to enable a phishing scheme facilitated by sending email hosted by <timkenco.com> and posing as Complainant’s CEO to Complainant’s customers in furtherance of fraud. Respondent had actual knowledge of Complainant’s rights in the TIMKEN mark when it registered the at-issue domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TIMKEN 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 its TIMKEN 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’s registration of its TIMKEN mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <timkenco.com> domain name consists of Complainant’s TIMKEN trademark followed by the suggestive term “co” and with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish the <timkenco.com> domain name from Complainant’s TIMKEN mark under Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <timkenco.com> domain name is confusingly similar to Complainant’s TIMKEN trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).).
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, absent evidence of Policy ¶4(c) circumstances 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. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for <timkenco.com> indicates that “Maria Balog” is the domain name’s registrant and there is nothing in the record before the Panel that tends to prove that Respondent is known by the <timkenco.com> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). 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).
While Respondent’s confusingly similar domain name does not address an active website, Respondent nevertheless uses <timkenco.com> to host email. Email sent to Complainant’s customers from <timkenco.com> pretends to be from Complainant’s CEO. Cloaked as Complainant, Respondent may trick Complainant’s customers into doing Respondent’s duplicitous bidding. Respondent’s use of the <timkenco.com> domain name in this manner is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See 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, 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).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name.
Respondent’s <timkenco.com> domain name was registered and used in bad faith. As discussed below without being exhaustive, bad faith circumstances are present that permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent uses the at-issue domain name to facilitate an email phishing scheme. The at-issue domain name is used to host email that Respondent sends to Complainant’s customers. Respondent’s <timkenco.com> hosted email impersonates Complainant’s CEO and by doing so Respondent enables a scheme to deceive email recipients into mistakenly believing they are dealing with Complainant. Respondent may then capitalize on the false confidence it has instilled and cloaked as Complainant direct Complainant’s customers to erroneously submit payments to Respondent that are actually or purportedly due Complainant. Respondent’s corrupt activity indicates Respondent’s bad faith under the Policy ¶ 4(b)(iv) and otherwise. 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); see also, 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)”)
Moreover, Respondent had actual knowledge of Complainant’s rights in the TIMKEN mark at the time it registered <timkenco.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s TIMKEN trademark and from Respondent’s use of the confusingly similar domain name to perpetrate an email phishing scheme as discussed elsewhere herein. Respondent’s registration and use of <timkenco.com> with knowledge of Complainant’s rights in TIMKEN further shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”); see also, 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <timkenco.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 26, 2023
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