Havtech Group, LLC v. Good Morning
Claim Number: FA2307002053859
Complainant is Havtech Group, LLC (“Complainant”), represented by Laura J. Winston of Offit Kurman, P.A., New York, USA. Respondent is Good Morning (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <havtceh.com>, registered with NameCheap, Inc.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on July 19, 2023; Forum received payment on July 19, 2023.
On July 19, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <havtceh.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 July 24, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 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@havtceh.com. Also on July 24, 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 August 15, 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 <havtceh.com> domain name is confusingly similar to Complainant’s HAVTECH mark.
2. Respondent does not have any rights or legitimate interests in the <havtceh.com> domain name.
3. Respondent registered and uses the <havtceh.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant has been in the HVAC and related business since 1983. Complainant has common law rights in the HAVTECH mark.
Respondent registered the domain name on April 24, 2023, and uses it to resolve to an inactive page and to conduct 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 and 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”).
Complainant claims that it has common law rights in the HAVTECH mark through continuous use since 1983. Since its establishment in 1983, Complainant has become a leading provider of HVAC and engineered building systems and services throughout the Mid-Atlantic region. Complainant provides evidence showing that it has become well-recognized throughout the industry due to its expertise and extensive advertising, and thus the HAVTECH mark has acquired secondary meaning. Complainant has used the <havtech.com> domain name to conduct business for 20 years. In the absence of any assertion to the contrary, and due to Complainant’s long-standing continuous use, the Panel finds that Complainant has rights in the HAVTECH mark. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including “longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising.”); see also Indianapolis Downs, LLC v. Philip Mazzone, FA 1244694 (Forum Mar. 11, 2009) (“Policy ¶ 4(a)(i) does not require proof of a registered trademark if Complainant can demonstrate its common law rights through secondary meaning.”).
Respondent’s <havtceh.com> domain name uses Complainant’s HAVTECH mark and merely transposes 2 letters and adds the “.com” gTLD. These changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See 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.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”). Therefore, the Panel finds that Respondent’s <havtceh.com> domain name is confusingly similar to Complainant’s HAVTECH 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 contends that Respondent lacks rights and legitimate interests in the <havtceh.com> domain name as Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the HAVTECH mark. The WHOIS information for the disputed domain name lists the registrant as “Good Morning”. 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 Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also 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)”).
Complainant contends that Respondent fails to use the <havtceh.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use as the disputed domain name fails to resolve to an active webpage. Using a disputed domain name to resolve to an inactive webpage is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”). Complainant provides a screenshot showing that the disputed domain name does not resolve to an active webpage. 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 (iii).
Complainant also demonstrates that Respondent uses the disputed domain name to pass off as employees of Complainant in emails soliciting payment. The Panel finds that this is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and is further evidence that Respondent has no rights under Policy ¶¶ 4(c)(i) or (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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant shows that Respondent registered and uses the <havtceh.com> domain name to send emails from accountsreceivable@havtceh.com and further a scheme for Respondent’s financial gain. Registering a confusingly similar domain name to conduct a fraudulent email scheme evinces bad faith registration and use 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 argues that Respondent registered the <havtceh.com> domain name with actual knowledge of Complainant’s rights in the HAVTECH mark to create emails impersonating Complainant’s Accounts Receivable department. The Panel agrees and finds that Respondent registered the disputed domain name in bad faith per 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.”).
Complainant alleges that Respondent registered and uses the <havtceh.com> domain name in bad faith as Respondent has failed to make an active use of the disputed domain name. 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 contends that Respondent’s typosquatting also demonstrates bad faith. Registering a disputed domain name that intentionally introduces a typographical error in a mark evinces bad faith registration and use under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 1683305 (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.”) Accordingly, the Panel finds bad faith typosquatting 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 <havtceh.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 16, 2023
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