DECISION

 

Pendo.io, Inc. v. greqgf ergfewfewq

Claim Number: FA2310002068888

 

PARTIES

Complainant is Pendo.io, Inc. ("Complainant"), represented by William B. Cannon of Parker Poe Adams & Bernstein LLP, North Carolina, USA. Respondent is greqgf ergfewfewq ("Respondent"), Great Britain.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <pendo-app.com>, registered with Gname.com Pte. Ltd.

 

PANEL

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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 31, 2023; Forum received payment on October 31, 2023.

 

On November 2, 2023, Gname.com Pte. Ltd. confirmed by email to Forum that the <pendo-app.com> domain name is registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the name. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. 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 November 2, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 22, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@pendo-app.com. Also on November 2, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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 November 25, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant uses the PENDO, PENDOVOX, and PENDOMONIUM marks in connection with a product experience platform used by more than 10,000 companies. Complainant owns corresponding United States trademark registrations, including a registration for PENDO in standard character form that issued in 2018 and reflects a first use date of 2014. Complainant also owns the domain name <pendo.io>, which it uses for its official website.

 

The disputed domain name <pendo-app.com> was registered in October 2023. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name is being used for a website that displays Complainant's PENDO mark, in the same stylized form used by Complainant, along with the same color scheme and promotional language that appear on Complainant's website. Respondent's website prompts the user to enter a username and password, in what Complainant alleges is an attempt to phish for confidential information. Complainant states that Respondent is not commonly known by the domain name, has connection to Complainant, and is not licensed or authorized to use Complainant's marks.

 

Complainant contends on the above grounds that the disputed domain name <pendo-app.com> is confusingly similar to its registered marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

DISCUSSION

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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").

 

Identical and/or Confusingly Similar

The disputed domain name <pendo-app.com> incorporates Complainant's registered PENDO trademark, adding a hyphen, the generic term "app," and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Credit Karma, LLC v. Polyakov Andrey, FA 2003287 (Forum Aug. 2, 2022) (finding <creditkarma-app.com> confusingly similar to CREDIT KARMA); Bittrex, Inc. v. ELEA MOREIRA BARBOSA, FA 1796328 (Forum Aug. 10, 2018) (finding <bittrex-app.com> confusingly similar to BITTREX). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use is for a website that passes off as Complainant in support of what the Panel infers to be a fraudulent phishing scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Credit Karma, LLC v. Polyakov Andrey, supra (finding lack of rights or interests in similar circumstances); Bittrex, Inc. v. ELEA MOREIRA BARBOSA, supra (same).

 

Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.

 

Registration and Use in Bad Faith

Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."

 

Respondent used a privacy registration service and what appears to be at least partially fictitious underlying registration information to register a domain name incorporating Complainant's registered mark, and is using the domain name to pass off as Complainant in support of a fraudulent scheme. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Credit Karma, LLC v. Polyakov Andrey, supra (finding bad faith registration and use in similar circumstances); Bittrex, Inc. v. ELEA MOREIRA BARBOSA, supra (same). The Panel so finds.

 

DECISION

Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <pendo-app.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

David E. Sorkin, Panelist

Dated: November 25, 2023