DECISION

 

Tennessee Valley Authority v. Host Master / Transure Enterprise Ltd

Claim Number: FA2312002075999

 

PARTIES

Complainant is Tennessee Valley Authority ("Complainant"), represented by Nicole Berkowitz Riccio of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Tennessee, USA. Respondent is Host Master / Transure Enterprise Ltd ("Respondent"), Delaware, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <tvacareers.com>, registered with Above.com Pty 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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 20, 2023; Forum received payment on December 20, 2023.

 

On December 30, 2023, Above.com Pty Ltd. confirmed by e-mail to Forum that the <tvacareers.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty 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 January 5, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 25, 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@tvacareers.com. Also on January 5, 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 January 26, 2024, 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:

 

Complainant Tennessee Valley Authority (TVA) provides electricity for 153 local power companies serving 10 million people in Tennessee and six surrounding states, as well as directly to 58 large industrial customers and federal installations. TVA also provides flood control, navigation, and land management for the Tennessee River system and assists local power companies and regional governments with their economic development efforts. TVA provides economic development services in Mississippi, Alabama, Georgia, North Carolina, Virginia, and Kentucky.

 

TVA is the owner of the common law and federal rights to the TVA (and Design) trademark and word mark TVA which are used in connection with utility electric services; business planning; water management services; providing conservational, recreational, environmental and educational facilities in the nature of workshops, parks, recreational camps, inland waterways, woodlands, trails, historic and scenic sites, critical habitats, environmental laboratories, and similar institutions and making available to the public publications and other informational material in connection with activities available at such facilities; and educational services.

 

The at-issue domain name is near identical to Complainant's <tva.com> domain name. The website addressed by the domain name is suspected to be malicious and believed to contain scareware as visitors are presented with a storm of pop-up screens and then a number to call. A number of Complainant's employees have inadvertently visited the website. Respondent used a privacy shield. 

 

The at-issue domain name contains Complainant's TVA trademark followed by the term "careers" and is identical to Complainant's TVA trademarks.

 

Respondent lacks rights and legitimate interests in the at-issue domain name. Respondent uses the domain name to trade on the goodwill associated with Complainant's trademarks. Respondent uses the domain name to fraudulently attract those searching for information about TVA careers but is presented with harmful links. Respondent has no authority to use Complainant's trademarks. 

 

Respondent registered and is using the at-issue domain name in bad faith. Respondent uses the domain name Respondent attempted to attract, for its own gain or ill intent, Internet users to Respondent's website located at the domain name. Respondent's infringement creates a likelihood of confusion with the Complainant's TVA Trademarks as to the source, sponsorship, affiliation, or endorsement of Respondent's website. Respondent is attempting to trade on the goodwill of a well-respected brand in order to fraudulently induce customers, employees, and prospective employees to visit potentially harmful websites. Respondent's had actual or at least constructive knowledge of Complainant's marks.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the TVA 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 TVA trademark.

 

Respondent uses the at-issue domain name to address a webpage hosting pay-per-click links.

 

Respondent uses the at-issue domain name to attract internet users to a website displaying third-party links.

 

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 registration of the TVA mark with the USPTO sufficiently demonstrates Complainant's rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).").

 

Respondent's <tvacareers.com> domain name contains Complainant's TVA trademark followed by the descriptive term "careers" with all followed by the ".com" top-level. The differences between Complainant's trademark and the at-issue domain name fail to distinguish the domain name from Complainant's trademark for the purposes of the Policy. Therefore, the Panel concludes that Respondent's <tvacareers.com> domain name is confusingly similar to Complainant's TVA trademark pursuant to Policy ¶ 4(a)(i). See 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, absent evidence of Policy ¶4(c) circumstances 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 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 <tvacareers.com> indicates that "Host Master – Transure Enterprise Ltd" is the domain name's registrant and there is no evidence in the record indicating that Respondent is commonly known by <tvacareers.com>. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent uses <tvacareers.com> to address a website displaying links to third-parties. Respondent's use of the <tvacareers.com> domain name is thus not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) ("Respondent's use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering."); see also, Vance Int'l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).

 

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

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to the Policy.

 

First, Respondent is using its confusingly similar <tvacareers.com> domain name to address a website displaying pay-per-click links. Respondent's use of the domain name in such manner is disruptive to Complainant's business. To wit, a number of Complainant's employees have visited the <tvacareers.com> website and Complainant has consumed internal resources to investigate the at-issue domain name and associated website. Furthermore, Respondent is taking unfair advantage of the confusion it precipitated between the at-issue domain name and Complainant's well-known TVA trademark. The evidence thus indicates Respondent's bad faith pursuant to Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Vivint, Inc. v. Online Management, FA 1549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links).

 

Next, Complainant reports that internet users visiting Respondent's <tvacareers.com> website have been confronted with a barrage of pop-up screens and then a phone number to be called. Thus, it appears that Respondent's <tvacareers.com> domain name delivers internet users to a website that in addition to featuring pay-per-click links serves as a vector for malware. Such use or the domain name tarnishes Complainant's trademark and further demonstrates Respondent's bad faith under the Policy. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA 1617061 (Forum June 9, 2015) ("In addition, Respondent's undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.");see also, Microsoft Corporation v. ABK / George Owens a/k/a Rohan / Rohan Suha, FA1211001473573 (Forum Jan. 21, 2013) (holding that because the respondent used the at-issue domain name to attempt to facilitate the download of malicious software to the computers of the website's visitors, the respondent had registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii)).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the TVA mark when it registered <tvacareers.com> as a domain name. Respondent's actual knowledge of Complainant's rights in TVA is evident given the notoriety of Complainant's renowned trademark and given that Respondent combined the suggestive term "careers" along with Complainant's trademark in forming the <tvacareers.com> domain name. Respondent's registration of <tvacareers.com> with knowledge of Complainant's trademark rights in TVA further shows Respondent's bad faith registration and use of <tvacareers.com> pursuant to the Policy. 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); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION 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 <tvacareers.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: January 28, 2024