DECISION

 

Havtech Group, LLC v. Jay Brown / Johnson and Sons

Claim Number: FA2311002069701

 

PARTIES

Complainant is Havtech Group, LLC ("Complainant"), represented by Laura J. Winston of Offit Kurman, P.A., New York, USA. Respondent is Jay Brown / Johnson and Sons ("Respondent"), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <hauvtech.com>, registered with NameCheap, Inc.

 

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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 6, 2023; Forum received payment on November 6, 2023.

 

On November 6, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <hauvtech.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 10, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 1, 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@hauvtech.com. Also on November 10, 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 December 3, 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

Since its establishment in 1983, Complainant has become a leading engineered building systems and services provider throughout the Mid-Atlantic region.

 

Complainant has a trademark registration for HAVTECH with the USPTO. Complainant's trademark registration with a recognized trademark authority conclusively demonstrates Complainant's rights in the HAVTECH mark under the Policy. Complainant operates the domain name <havtech.com> and uses it as its primary website and as the second level domain for its employees' e-mail addresses.

 

Respondent's <hauvtech.com> domain name is virtually identical to Complainant's HAVTECH trademark as the insertion of the letter "u" into Complainant's trademark is insufficient to distinguish the trademark from the domain name.

 

Respondent lacks rights and interests in the at-issue domain name. Respondent's domain name was registered well after Complainant acquired rights in HAVTECH. Complainant has never authorized Respondent to use its trademark and Respondent has never been known by the domain name. Respondent has not made any use of or made any demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services. Instead, the domain name is directed to a parked webpage indicating that the domain name is currently suspended pending email address verification from the owner of the domain name. The domain name is thus inactive.

 

Respondent uses the domain name to provide email addresses at <hauvtech.com> that Respondent further uses to pose as an employees of Complainant and send email to third party recipients having a business relation with Complainant to trick such recipients into directing payments intended for Complainant to Respondent. Respondent uses a crafty and elaborate ruse to make the targeted recipients believe they need to updated bank account information for Complainant. Respondent is thus perpetuating a phishing scheme.

 

Respondent registered and uses the at-issue domain name in bad faith. Respondent knew of Complainant's rights in HAVTECH when it registered <hauvtech.com> as a domain name given Respondent's use of the domain name and use of the real names of Complainant's employees in Respondent's fraudulent emails. Respondent's use of the domain name to facilitate an email phishing scheme is disruptive to Complainant's business and also shows Respondent's desire to create a likelihood of confusion between the at-issue domain name and Complainant's mark fostering the assumption that the content found at the website is somehow sponsored or endorsed by Complainant. Further, Respondent intends to attract internet users to its website to presumably receive click-through fees, all for Respondent's commercial gain. Respondent holds the domain name passively as it addresses a webpage devoid of substantive content. Respondent's registration of the domain name with a privacy service is additional evidence of bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the HAVTECH 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 the HAVTECH trademark.

 

Respondent used the at-issue domain name to facilitate an email phishing scheme.

 

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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant's USPTO registration for HAVTECH is sufficient to demonstrate Complainant's rights in a mark for the purposes of Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant's rights in the HOME DEPOT mark).

 

Respondent's <hauvtech.com> domain name contains a recognizable misspelled version of Complainant's HAVTECH trademark where a letter "u" is inserted into the mark and all is followed by the ".com" top level domain. The differences between the at-issue domain name and Complainant's trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent's <hauvtech.com> domain name is confusingly similar to Complainant's HAVTECH trademark. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, "Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate."); see also, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable 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.").

 

Rights or Legitimate Interests

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, 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 legitimate interests in respect of the at-issue domain name. See 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)").

 

The WHOIS information for <hauvtech.com> indicates the domain name's registrant is "Jay Brown" and the record before the Panel contains no evidence tending to prove that Respondent is commonly known as <hauvtech.com>. The Panel therefore concludes that Respondent is not commonly known by the <hauvtech.com> domain name for the purposes of Policy ¶ 4(c)(iii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).

 

Respondent's <hauvtech.com> domain name is used to host email pretending to come from several of Complainant's actual employees. Respondent's sham email is designed to deceive third parties regarding the email's source and ultimately to have the email's recipients direct funds intended for Complainant to an account controlled by Respondent. Such use of the <hauvtech.com> domain name indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent's use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).

 

Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent's lack of rights and lack of legitimate interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

As discussed below without limitation, there is evidence that leads the Panel to find that Respondent acted in bad faith pursuant to the Policy.

 

First as noted above regarding rights and legitimate interests, Respondent used the at-issue domain name in connection with an email based scheme intent on defrauding third parties. Respondent's bogus email impersonates Complainant's employees so that Respondent may trick their recipients into sending Respondent funds actually meant for Complainant. Respondent's use of the domain name to afford an email address for imposters to further fraud and interfere with Complainant's business shows Respondent's bad faith registration and use of the at-issue domain name under Policy¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See 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)"); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent's use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)).

 

Next, Respondent engages in typosquatting. Respondent's domain contains an intentional misspelling of Complainant's trademark where the letter "u" is inserted into mark. Typosquatting, in itself, indicates bad faith registration and use of Respondent's at-issue domain name. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the HAVTECH mark when Respondent registered <hauvtech.com> as a domain name. Respondent's actual knowledge is apparent from Respondent's phishing scheme's reliance on stealing the identity of actual employees of Complainant. Respondent's prior knowledge of Complainant's trademark further shows Respondent's bad faith registration and use of <hauvtech.com>. See 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).

 

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 <hauvtech.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: December 3, 2023