DECISION

 

Gulfstream Aerospace Corporation v. UDRP Account / PDR Ltd Compliance Team

Claim Number: FA2312002075875

PARTIES

Complainant is Gulfstream Aerospace Corporation ("Complainant"), represented by Michael R. Justus, District of Columbia, USA. Respondent is UDRP Account / PDR Ltd Compliance Team ("Respondent"), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <gulfstream-us.com> ("Domain Name"), registered with Pdr Ltd. D/B/A Publicdomainregistry.Com.

 

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.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 19, 2023; Forum received payment on December 19, 2023.

 

On January 9, 2024, Pdr Ltd. D/B/A Publicdomainregistry.Com confirmed by e-mail to Forum that the <gulfstream-us.com> domain name is registered with Pdr Ltd. D/B/A Publicdomainregistry.Com and that Respondent is the current registrant of the name. Pdr Ltd. D/B/A Publicdomainregistry.Com has verified that Respondent is bound by the Pdr Ltd. D/B/A Publicdomainregistry.Com 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 January 11, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2024 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@gulfstream-us.com. Also on January 11, 2024, 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 February 1, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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 is a provider of aircraft and related products and services.  Complainant asserts rights in the GULFSTREAM mark based upon registration with the United States Patent and Trademark Office ("USPTO") (e.g. Reg. No. 1,162,644, registered July 28, 1981).  Respondent's <gulfstream-us.com> domain name is identical or confusingly similar to Complainant's GULFSTREAM mark as it merely adds the generic word or geographical term "-us" and the ".com" generic top-level-domain ("gTLD") to the wholly incorporated mark.

 

Respondent lacks rights or legitimate interests in the <gulfstream-us.com> domain name.  Respondent is not commonly known by the Domain Name, nor has Respondent been authorized by Complainant to use the GULFSTREAM mark.  Respondent has not used the Domain Name in connection with a bona fide offering of goods or services as Respondent uses the Domain Name to create emails impersonating Complainant's employees for fraudulent purposes. 

 

Respondent registered and uses the <gulfstream-us.com> domain name in bad faith.  Respondent disrupts Complainant's business as Respondent registered the Domain Name to create emails that impersonate Complainant's employees for the purpose of phishing and fraud.  Finally, Respondent had actual knowledge of Complainant's rights to the GULFSTREAM mark prior to registering the Domain Name given its use as an e-mail address for e-mails where Respondent passes off as Complainant. 

 

B. Respondent

Respondent failed to submit a Response in this proceeding.  

 

For the purpose of clarification, the Domain Name, at the commencement of the proceeding, was registered to a different registrant. The name and contact details of that registrant were fake, being the identity of an employee of the Complainant who did not register the Domain Name.

 

At the commencement of the proceeding the Domain Name was shortly to expire.  The Complainant paid a fee for renewal of the Domain Name in order for it to be active while this proceeding was ongoing, and as an administrative measure, the Domain Name was transferred to an account maintained by the Registrar, being the current Respondent.  For the purposes of this proceeding the Panel is treating the named Respondent as, in essence, holding the Domain Name on trust for the entity who was holding it at the commencement of the proceeding and all findings of bad faith and lack of rights and legitimate interests are made against that registrant and not the Registrar itself.

 

FINDINGS

Complainant holds trademark rights for the GULFSTREAM mark.  The Domain Name is confusingly similar to Complainant's GULFSTREAM mark.  Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used the Domain Name 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 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 has rights in the GULFSTREAM mark through its registration with the USPTO (e.g., Reg. No. 1,162,644, registered July 28, 1981).  Registration of a mark with the USPTO is sufficient to establish rights in that mark.  See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, "Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.").

 

The Panel finds that the <gulfstream-us.com> domain name is confusing similar to Complainant's GULFSTREAM mark as it consists of the GULFSTREAM mark with the addition of the descriptive word or geographic term "-us" and the ".com" gTLD.  Addition of a generic or descriptive term and a gTLD does not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i).  See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) ("Respondent merely adds the term 'supports' and a '.org' gTLD to the DELL mark. Thus, the Panel finds Respondent's disputed domain name is confusingly similar to Complainant's DELL mark per Policy ¶ 4(a)(i)"). 

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name.  In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.").  The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the GULFSTREAM mark.  Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.  WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged.  See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (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).   For the reasons set out in the Response section of this decision, the WHOIS does not accurately identify the proper holder of the Domain Name as registrant of record but at no point has the WHOIS listed as registrant an entity corresponding with the GULFSTREAM mark.  Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).

 

The Domain Name is inactive which by itself does not show a bona fide offering of goods and services.  Complainant alleges, and provides evidence supporting its allegations, that prior to the commencement of the proceeding the Domain Name was used for creating an e-mail address used by Respondent as part of a scheme where Respondent would pose as employees of Complainant seeking to purchase goods on credit in the Complainant's name.  Such conduct is best characterized as "phishing" or "fraud".  Respondent's use of the Domain Name to impersonate Complainant for the purpose of engaging in a phishing scheme to goods fraudulently 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)"); see also Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum March 7, 2018) ("Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).");

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that at the time Respondent registered the Domain Name, November 10, 2022, Respondent had actual knowledge of Complainant's GULFSTREAM mark.  It would be implausible for an entity to register the Domain Name and pass off as named employees of the Complainant absent knowledge of Complainant and its reputation in the GULFSTREAM mark.  In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

The Panel finds that Respondent registered and uses the Domain Name in bad faith as Respondent uses or has used the Domain Name to impersonate Complainant in furtherance of a phishing scheme.  Use of a disputed domain name to impersonate a complainant in furtherance of a phishing scheme is evidence of bad faith per Policy ¶ 4(a)(iii).  See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent's apparent use of the disputed domain name in furtherance of a 'phishing' scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)).  Accordingly, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to Policy ¶ 4(b)(iii).

 

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 <gulfstream-us.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: February 2, 2024