Gulfstream Aerospace Corporation v. Preethi Wilson
Claim Number: FA2307002054417
Complainant is Gulfstream Aerospace Corporation (“Complainant”), represented by Michael Justus, District of Columbia, USA Respondent is Preethi Wilson (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gulfsttream.com>, registered with Google LLC.
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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to Forum electronically on July 24, 2023; Forum received payment on July 24, 2023.
On July 25, 2023, Google LLC confirmed by e-mail to Forum that the <gulfsttream.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 July 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 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@gulfsttream.com. Also on July 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 August 16, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant submits that together with its predecessors, it has been engaged in the aircraft business under the GULFSTREAM mark for over 60 years and is one of the leading providers of high-quality aircraft and related products and services to individuals, businesses, government units, and others in the United States and around the world.
Complainant adds that that it promotes its GULFSTREAM aircraft and related products and services through a variety of marketing and trade channels, including its own website, trade shows and industry events, third-party websites, social media platforms, print advertising, sponsorships, and film and television placements.
Moreover, Complainant submits that it holds a large share of the private jet market; that it has been consistently ranked as a leader in brand reputation among business jet manufacturers in third-party rankings; and as a result of Complainant’s long and extensive use and registration of the GULFSTREAM mark, and the significant sales, promotion, advertising, third-party acclaim, and commercial success its GULFSTREAM mark has achieved widespread public exposure, acclaim, cachet and recognition.
Complainant further submits that its official website to which the domain name <gulfstream.com> resolves has been used by Complainant in connection with its sale of aircraft and related products and services under its famous GULFSTREAM mark for over 25 years. In support of this submission a copy of an archived web page from <www.gulfstream.com> from 1999 from the Wayback Machine at <archive.org> is exhibited as an annex to the Complaint.
Complainant alleges that the disputed domain name <gulfsttream.com> is identical or virtually identical to Complainant’s GULFSTREAM mark because it is comprised of the identical GULFSTREAM mark, simply misspelled with an extra letter “t” in the middle and has no additional wording other than the generic Top-Level Domain (“gTLD”) extension <.com>.
Moreover, Complainant argues that the misspelling, replacing letters, or the additional of the letter “t” do not distinguish the disputed domain name from Complainant’s mark, when considering the issue of confusing similarity under Policy ¶ 4(a)(i). See Western Alliance Bancorporation v. James Brandon, FA 1783001 (Forum June 5, 2018) (“Respondent’s <westernalliancebcorporation.info> domain name is confusingly similar to Complainant’s WESTERN ALLIANCE BANCORPORATION mark because it merely appends the gTLD ‘.info’ to a misspelled version of Complainant’s mark.”).
Complainant adds that neither does the gTLD extension <.com> distinguish the disputed domain name from Complainant’s GULFSTREAM mark. See David Duchovny v. Alberta Hot Rods c/o Jeff Burgar, FA 1734414 (Forum July 4, 2017) (“Respondent arrives at the disputed domain name by simply taking Complainant’s mark in its entirety and adding the gTLD “.com”. This is insufficient to distinguish the disputed domain name from Complainant’s common law trademark.”).
Next Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that Respondent is not commonly known by the disputed domain name. It is submitted that the WhoIs information may be used to determine whether a respondent is commonly known by a domain name at issue under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the domain name at issue, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)).
In this regard, Complainant adds that the Registrar has confirmed to the Forum that the WhoIs for the disputed domain name identifies Respondent’s name is “Preethi Wilson,” confirming that Respondent is not commonly known by Respondent’s GULFSTREAM mark.
Complainant adds that Respondent has failed to provide a real and genuine identity. The WHOIS information for the disputed domain name lists the registrant’s name as blocked by a privacy service, which is also evidence that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). When WHOIS information merely lists a privacy service as registrant and there is a failure to provide any evidence to the contrary, a panel may find there is no basis to find respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name).
Complainant asserts that Respondent is not licensed or authorized to use Complainant’s GULFSTREAM mark, adding that lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the domain name at issue 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).
Complainant further alleges that the disputed domain name is being used in fraudulent and malicious activity and the registration is an obvious example of “typosquatting” of Complainant’s GULFSTREAM mark.
Referring to redacted copies of correspondence between Complainant and one of its business partners in the aviation industry that is exhibited in an annex to the Complaint, Complainant submits that it has received a complaint from its business partner that Respondent is fraudulently using the disputed domain name to pose as an employee of Complainant in an attempt to divert payments to Respondent’s bank accounts. The exhibited correspondence shows that Respondent fraudulently passes itself off as an employee of Complainant, and falsely informs Complainant’s said business partner must send payment to a different bank account, which is in fact Respondent’s bank account.
Complainant submits that Respondent is therefore engaged in serious fraud in contravention of the Policy and numerous laws.
Complainant adds that under Policy ¶¶ 4(c)(i) and (iii), engaging in phishing is not a bona fide offering of goods or services, nor a noncommercial or fair use. See Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”).
Furthermore, Complainant argues that using a domain name at issue to pass off as a complainant’s employee for the purpose of furthering a phishing campaign is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (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)”).
Moreover, referring to a further screen capture of the web location to which the disputed domain name resolves which is exhibited in an annex to the Complaint, Complainant submits that it shows that the disputed domain name does not resolve to an active web page, which it alleges amounts to passive holding, which is inconsistent with the establishment of rights in the disputed domain name.
Complainant contends that under Policy ¶ 4(a)(iii), engaging in phishing by use of email, or otherwise using a confusingly similar domain name to perpetrate fraud, is evidence of bad faith registration and use. See National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant’s President and CEO); adding that under Policy ¶ 4(b)(iii), passing off as a complainant is a disruption of the complainant’s business and thus evidence of bad faith. See Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith).
Complainant additionally argues that inactively holding a domain name at issue is also evidence of bad faith registration and use for the purposes of the Policy.
Furthermore, it is contended that using a WHOIS privacy service may contribute to a finding of bad faith registration and use. See Phoenix Niesley-Lindgren Watt v. Contact Privacy Inc., FA 1800231 (Forum Sep. 6. 2018) (“In a commercial context, using a WHOIS privacy service raises the rebuttable presumption of bad faith registration and use of the disputed domain name. An honest merchant in the marketplace does not generally try to conceal the merchant’s identity. Good faith requires honesty in fact. Respondent did nothing to rebut this presumption of bad faith. Therefore, the Panel will find bad faith registration and use for this reason.”).
Complainant adds that panels established under the Policy have made a finding of bad faith where (1) the respondent knew or should have known of the complainant’s famous marks and (2) the respondent made no legitimate use of the domain name at issue. See TV Globo Ltda. v. Globoesportes.com, D2000-0791 (WIPO Sept. 12, 2000) (finding bad faith where (1) the domain name in dispute is obviously connected with a well-known mark, (2) the respondent deliberately chose a domain name which is the mark of the largest TV operator in the world’s largest Portuguese speaking country, and (3) the respondent failed to develop the site).
Complainant asserts that its GULFSTREAM mark was adjudicated famous by the Trademark Trial and Appeal Board of the United States Patent and Trademark Office after a full administrative trial in Gulfstream Aerospace Corporation v. Gulfstream Unsinkable Boats, LLC, Opp. No. 91233257, 2019 WL 5386295 (TTAB Oct. 21, 2019).
Complainant argues that Respondent’s knowledge of Complainant’s prior rights in the famous GULFSTREAM mark are also proven by the obvious typosquatting and fraudulent scheme whereby Respondent blatantly chose a misspelling of the famous GULFSTREAM mark and is using the disputed domain name to contact business partners of Complainant and posing as one of Complainant’s employees to extract payments to a different bank account.
As shown in the exhibited email correspondence, the signature block of the fraudulent emails displays Complainant’s business name, employee name, and phone number; and Respondent contacted a real business partner of Complainant.
Finally Complainant repeats that the disputed domain name is an obvious example of “typosquatting” of Complainant’ s GULFSTREAM mark, and argues that creating a domain name which takes advantage of common errors when Internet users are seeking a site by typing a registered or common law mark, amounts to bad faith registration under Policy. See Nextel Commc’ns Inc. v. Geer, FA 477183 (Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form).Respondent’s obvious typosquatting and malicious activity constitutes a real threat, and a real disruption to Complainant’s business under the Rules and Policy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant carries on business as the provider of aircraft and related products and services under the GULFSTREAM mark and is the registered owner of the following trademarks and service marks:
· United States registered trademark GULFSTREAM, registration number 1162644), registered on the Principal Register on July 28, 1981 for goods in international class 12;
· United States registered service mark GULFSTREAM, registration number 4295794, registered on the Principal Register on February 26, 2013, for services in international classes 37, 41, and 42;
· United States registered service mark GULFSTREAM, registration number 5280654, registered on the Principal Register on September 5, 2017, for goods in international class 9.
Complainant has an established Internet presence and has maintained a website at <www.gulfstream.com> since 1999.
The disputed domain name <gulfsttream.com> was registered on July 19, 2023. It does not resolve to any active webpage, but has been used to create an email account from which Respondent has purported to perpetrate a phishing scheme by impersonating Complainant.
There is no information available about Respondent, except for that provided in the Complaint as amended, the Registrar’s WhoIs for the disputed domain name, and the information provided by the Registrar in response to the request by Forum for details of the registration of the disputed domain name in the course of this proceeding.
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”).
Identical and/or Confusingly Similar
Complainant’s Rights
Complainant has provided convincing, uncontested evidence that it has rights in the GULFSTREAM mark, established by the ownership with its wholly owned subsidiary of the portfolio of trademark and service mark registrations described above and the reputation and goodwill that it has established by its long and extensive use of the mark in the aviation industry.
Confusing Similarity
The disputed domain name consists of Complainant’s GULFSTREAM mark in its entirety in combination with the letter “a” and the gTLD extension <.com>.
Complainant’s GULFSTREAM mark is the initial, dominant, and only distinctive element in the disputed domain name. The addition of a second letter “t” within the mark, does not add any distinguishing character to the disputed domain name, and its addition to Complainant’s mark within the disputed domain name does not prevent a finding of confusing similarity, because it is likely to go unnoticed by a significant number of Internet users.
Similarly, the gTLD extension <.com> does not prevent a finding of confusing similarity because in the circumstances of this proceeding, it would be considered by Internet users to be a necessary technical requirement for a domain name registration.
This Panel finds therefore that the disputed domain name is confusingly similar to the GULFSTREAM mark, and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights legitimate interests in the disputed domain name arguing that
· Respondent is not commonly known by the disputed domain name.
· the WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
· the Registrar has confirmed to the Forum that the WhoIs for the disputed domain name identifies Respondent’s name is “Preethi Wilson,” confirming that Respondent is not commonly known by Respondent’s GULFSTREAM mark;
· Respondent has failed to provide a real and genuine identity;
· the WHOIS information for the disputed domain name lists the registrant name as being blocked by a privacy service;
· where the WHOIS information merely lists a privacy service as registrant and there is a failure to provide any evidence to the contrary, the Panel may decide that there is no basis to find that Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii);
· Respondent is not licensed or authorized to use Complainant’s GULFSTREAM mark, and such lack of authorization to use Complainant’s mark may indicate that Respondent is not commonly known by the disputed domain name;
· Respondent’s use of the disputed domain name, consisting of Complainant’s GULFSTREAM mark with an additional letter “t” inserted is an obvious example of “typosquatting” of Complainant’s mark;
· such obvious typosquatting by Respondent constitutes a fraudulent and malicious activity;
· the redacted copies of correspondence between Complainant and one of its business partners in the aviation industry that is exhibited in an annex to the Complaint, shows that Complainant has received a complaint from one of its business partners that Respondent is fraudulently using the disputed domain name to pose as an employee of Complainant in an attempt to divert payments to Respondent’s bank accounts;
· the exhibited correspondence shows that Respondent is endeavoring to fraudulently pass itself off as an employee of Complainant, and falsely informed Complainant’s said business partner that it must send payment to a different bank account, which is in fact Respondent’s bank account;
· Respondent is therefore engaged in serious fraud in contravention of the Policy and numerous laws;
· engaging in phishing is not a bona fide offering of goods or services, nor a noncommercial or fair use of the disputed domain name;
· using the disputed domain name to pass off as Complainant’s employee for the purpose of furthering a phishing campaign is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per the Policy;
· the screen capture of the web page to which the disputed domain name resolves which is exhibited in an annex to the Complaint, shows that the disputed domain name does not resolve to an active website, and such passive holding of the disputed domain name, is inconsistent with the establishment of rights in the disputed domain name.
It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.
Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant has adduced clear and convincing, uncontested evidence that it has trademark and service mark rights in the GULFSTREAM mark which predate the registration and first use of the disputed domain name on July 19, 2023
The GULFSTREAM mark is distinctive and Complainant has shown that the USPTO has found it to be a famous mark.
The term “gulfstream” is a known name for a geographical phenomenon, however the disputed domain name has an additional letter “t”, and Complainant has also shown that very soon after it was registered the disputed domain name has been used to create an email account from which Respondent has sent misleading emails to a business partner of Complainant in an attempted phishing scam. These factors indicate that the registrant intended the registration to refer to Complainant, its mark and to use the disputed domain name for an unlawful purpose.
This Panel finds therefore that on the balance of probabilities the registrant of the disputed domain name, was aware of Complainant, its business, and the reputation of its mark when the disputed domain name was chosen and registered.
This Panel further finds that on the balance of probabilities the disputed domain name was registered in bad faith with Complainant and the reputation of the GULFSTREAM mark in mind.
The screen captures annexed to the Complaint provide uncontested convincing evidence that Respondent has used the disputed domain name in bad faith to create an email account from which it has sent emails impersonating Complainant, and purporting to be sent from one of Complainant’s employees to a business partner of Complainant. The email correspondence shows that the purported employee introduced herself as a new account manger and requested that payments be sent to a new account with which Complainant has no association. The clear intention of the communications was to perpetrate a phishing fraud by deceiving the Complainant’s business partner and diverting payments of monies intended for Complainant to an account presumably controlled by Respondent.
In finding that the disputed domain name was registered and is being used in bad faith, this Panel is conscious that the disputed domain name consists of Complainant’s GULFSTREAM mark with the addition of a single letter “t” beside the existing letter “t”. On the balance of probabilities, in the circumstances described above, the registration and use of the disputed domain name are therefore acts of typosquatting which constitutes registration and use in bad faith for the purposes of the Policy.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in Policy paragraph 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 <gulfsttream.com> domain name be TRANSFERRED from Respondent to Complainant.
_____________________________________________
James Bridgeman SC, Panelist
Dated: August 19, 2023
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