DECISION

 

Agilent Technologies, Inc. v. Linn Osborn

Claim Number: FA2311002069306

PARTIES

Complainant is Agilent Technologies, Inc. ("Complainant"), represented by Julie A. Kent of Holland & Hart LLP, Colorado, USA. Respondent is Linn Osborn ("Respondent"), Michigan, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <non-agilents.com>, registered with NameCheap, Inc.

 

PANEL

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 2, 2023; Forum received payment on November 2, 2023.

 

On November 2, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <non-agilents.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 November 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 24, 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@non-agilents.com. Also on November 3, 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 November 26, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it provides a wide variety of goods and services in, inter alia, the life sciences, diagnostics, and the laboratory and scientific research industries. Complainant is a Fortune 500 company and world leader in the life sciences, diagnostics, and applied chemical markets. Complainant was formed in 1999 after its predecessor company, Hewlett-Packard, Inc., announced a strategic realignment to create Complainant as an independent measurement company composed of test and measurement components, life sciences and chemical analysis, electronics, and semiconductor and communications products. That "spin-off" of Hewlett-Packard in 1999 received significant media attention because, at the time, the $2.1 billion raised from this initial public offering ("IPO") was the largest IPO in Silicon Valley history. Complainant currently provides laboratories worldwide with instruments, services, consumables, applications, and expertise and employs over 18,000 people worldwide serving customers in 110 countries, and serving approximately 265,000 laboratories, including major universities, hospitals, and research institutions globally. Complainant, through its domain name and corresponding website <agilent.com>, operates a robust online marketplace where its customers can choose from hundreds of different products which can be shipped to countries all over the world. Complainant's revenues in 2022 exceeded $6.8 billion. Complainant's employees communicate by email with email addresses that utilize Complainant's <agilent.com> domain name (e.g., john.smith@agilent.com). In addition, Complainant provides email addresses to many of its independent contractors and external temporary workers, which utilize a subdomain of the <agilent.com> domain name, namely the subdomain of <non.agilent.com>, to help differentiate those individuals from Complainant's employees (e.g., john.smith@non.agilent.com). Many of these non-employee workers use their <non.agilent.com> email addresses to communicate with Complainant's customers, business partners, and other third parties. Complainant asserts rights in the AGILENT mark through its registration of the mark in the United States in 2002. The mark is registered elsewhere around the world.

 

Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its AGILENT mark because it consists of a misspelling of the mark (an "s" is added at the end), merely adding the generic term "non", a hyphen, and the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the AGILENT mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving website displays pay-per-click advertising links for products and services not related to Complainant. Further, MX records are configured for the disputed domain name, so it could be used to impersonate Complainant's independent contractors and external temporary workers – who use the domain name <non.agilent.com> – in fraudulent emails in furtherance of a phishing scheme.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website displays unrelated advertising hyperlinks. The disputed domain name may be used in furtherance of a fraudulent email phishing scheme. Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the AGILENT mark. Respondent engaged in typosquatting.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark AGILENT and uses it in connection with a wide variety of goods and services in, inter alia, the life sciences, diagnostics, and the laboratory and scientific research industries.

 

Complainant's rights in its mark date back to at least 2002.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website displays advertising links for products and services not related to Complainant.

 

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 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

The disputed domain name consists of a misspelling of Complainant's AGILENT mark (an "s" is added at the end), merely adding the generic term "non", a hyphen, and the ".com" generic top-level domain ("gTLD"). Including a trademark, even if misspelled, in a domain name, while adding hyphens and generic terms, does not distinguish the domain name from the mark under 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 Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) ("[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i)."). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to identify a respondent. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named "Fred Wallace" as registrant of the disputed domain name). Here, the WHOIS information of record identifies the registrant as "Linn Osborn". Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant provides evidence showing that MX records are configured for the disputed domain name, and alleges that it could be used in furtherance of a fraudulent phishing scheme, in particular because Complainant's independent contractors and external temporary workers use the domain name <non.agilent.com> for emails. The Panel finds that Complainant's allegation is credible, however it is not supported by evidence of actual use of the disputed domain name in emails. Since, as discussed below, other elements are dispositive for the instant case, the Panel finds that it does not need to rule on this allegation, and it will not further consider it.

 

The resolving website displays pay-per-click advertising links for products and services that are not related to those of Complainant. This does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy. See Bloomberg Finance L.P. v. Syed Hussain / IBN7 Media Group, FA 1721384 (Forum Apr. 26, 2017) (holding that the respondent's use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). Thus the Panel finds that Respondent fails to use the disputed domain name to make 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). And the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant alleges that Respondent engages in typosquatting. According to 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Jurisprudential Overview 3.0"), typosquatting consists of registering a domain name which consists of a common, obvious, or intentional misspelling of a trademark. Here, the disputed domain name contains a misspelling of Complainant's trademark, but it does not consist of the trademark, because the additional term "non" is added. Thus the Panel finds that Complainant's allegation of typosquatting is unfounded and will not further discuss it.

 

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, the resolving website contains advertising links to third party websites unrelated to Complainant's business. Use of a domain name to resolve to a page of third-party links can demonstrate a respondent's bad faith per Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant's business, through which the respondent presumably commercially gained). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).

 

DECISION

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

 

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

 

 

 

Richard Hill, Panelist

Dated: November 27, 2023