DECISION

 

Agilent Technologies, Inc. v. Brock Jake

Claim Number: FA2401002080321

 

PARTIES

Complainant is Agilent Technologies, Inc. ("Complainant"), represented by Julie A. Kent of Holland & Hart LLP, Colorado, USA. Respondent is Brock Jake ("Respondent"), Afghanistan.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <theagilentgroup.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 January 22, 2024; Forum received payment on January 22, 2024.

 

On January 23, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <theagilentgroup.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 January 24, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 13, 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@theagilentgroup.com. Also on January 24, 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 14, 2024, 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 2023 exceeded $6.8 billion. 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 identical or confusingly similar to its AGILENT mark as it includes the mark in its entirety, merely adding the generic/descriptive terms "the" and "group" together with the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized or licensed Respondent to use the AGILENT mark, nor is Respondent commonly known by the disputed domain name. Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website offers gambling services and displays pay-per-click advertising links to other gambling services.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website offers gambling services and related advertising. Respondent has engaged in a pattern of bad faith registration and use of domain names: it has been found to have registered and used a domain name in bad faith in one prior UDRP proceeding. Respondent had actual or constructive notice of Complainant's rights in the AGILENT mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark AGILENT 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 marks.

 

The resolving website offers gambling services and displays pay-per-click advertising links to other gambling services.

 

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 incorporates Complainant's AGILENT mark in its entirety, merely adding the generic/descriptive terms "the" and "group" together with the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See 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)). 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 licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: to determine whether a respondent is commonly known by a disputed domain name under Policy ¶ 4(c)(ii), the Panel may reference WHOIS information for the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same). Here, the WHOIS information shows Respondent is known as "Brock Jake". Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

The disputed domain name resolves to a website that offers gambling services. Previous Panels have found that this is not a bona fide or legitimate noncommercial or fair use of a disputed domain name. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (Respondent's domain name "resolves to a Chinese-language website advertising games or gambling.); see also Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) ("Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent's unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii)."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) or (iii).

 

Further, the resolving website hosts pay-per-click advertising links not related to Complainant. Using a disputed domain name to host a website with a parked website, hosting third-party links unrelated to complainant's business, is not a bona fide offering of goods and services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Constellation Wines U.S., Inc. v. Tex. Int'l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). Thus the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) on this ground also.

 

For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant alleges that Respondent has engaged in a pattern of bad faith registration and use of domain names, but, in support of that allegation, it cites only one UDRP case where Respondent had been found to have registered and used a domain name in bad faith. The Panel finds that this is not sufficient to establish a pattern of bad faith registration and use.

 

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 disputed domain name resolves to a website that offers gambling services. This is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Oki Electric Industry Co., Ltd. v. Elizabeth Dobson, FA 1989201 (Forum May. 2, 2022) ("the Panel determines that the disputed domain name's deceptive redirection of internet users to Respondent's website, which offers links to online gambling websites, is deliberately designed for Respondent's commercial gain.  Therefore, the Panel finds that the disputed domain name was registered and is being used in bad faith under Policy ¶ 4(b)(iv)."); see also Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent linked the domain name <marssmusic.com>, which is identical to the complainant's mark, to a gambling website); see also Qwest Comm'ns Int'l Inc. v. Ling Shun Shing, FA 187431 (Forum Oct. 6, 2003) ("Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant.  Respondent's attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv)."). Thus the Panel finds bad faith use and registration under Policy ¶ 4(b)(iv).

 

Further, also as already noted, Respondent uses the disputed domain name to attempt to attract users for commercial gain by hosting pay-per-click hyperlinks unrelated to Complainant's business. A panel may find bad faith when the respondent uses a confusingly similar domain name to host pay-per-click links in order to attract users for its own commercial gain. See Plain Green, LLC v. wenqiang tang, FA 1621656 (Forum July 1, 2015) (finding that the respondent's use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant's mark to direct Internet traffic to a commercial "links page" in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent's previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites). Therefore the Panel finds Respondent registered and is using the disputed domain name in bad faith within the meaning of Policy ¶ 4(b)(iv) on this ground also.

 

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

 

 

 

Richard Hill, Panelist

Dated: February 14, 2024