DECISION

 

Genus plc v. Maria Cortez / Allchem Inustries

Claim Number: FA2402002085327

 

PARTIES

Complainant is Genus plc ("Complainant"), represented by Christopher Arnold of Genus plc, Wisconsin, USA. Respondent is Maria Cortez / Allchem Inustries ("Respondent"), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <genusplc.org> ("Domain Name"), 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.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 23, 2024; Forum received payment on February 23, 2024.

 

On February 23, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <genusplc.org> 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 February 27, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 18, 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@genusplc.org. Also on February 27, 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 March 19, 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 cancelled.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant provides genetics and biotechnology products in the field of agriculture.  Complainant asserts rights in the GENUS mark based upon registration in numerous jurisdictions including with the United States Patent and Trademark Office ("USPTO") (e.g. Reg. No. 3,991,764 registered July 12, 2011).  Respondent's <genusplc.org> domain name is identical or confusingly similar to Complainant's GENUS mark as it merely adds the generic abbreviation "plc" (short for public limited company) and the ".org" generic top-level-domain ("gTLD") to the wholly incorporated mark.

 

Respondent lacks rights or legitimate interests in the <genusplc.org> domain name. Respondent is not commonly known by the Domain Name, nor has Respondent been authorized by Complainant to use the GENUS 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.   Complainant notes that its existing website and e-mail address is from the domain name <genusplc.com>, identical to the Domain Name other than the gTLD.

 

Respondent registered and uses the <genusplc.org> 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 GENUS 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.

 

FINDINGS

Complainant holds trademark rights for the GENUS mark.  The Domain Name is confusingly similar to Complainant's GENUS 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 GENUS mark through its registration with the USPTO (e.g., Reg. No. 3,991,764 registered July 12, 2011).  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 <genusplc.org> domain name is confusing similar to Complainant's GENUS mark as it consists of the GENUS mark with the addition of the descriptive abbreviation "plc" and the ".org" 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 GENUS 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, FA 1613011 (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, FA 1621573 (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).   The WHOIS lists "Maria Cortez / Allchem Inustries" as registrant of record.  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 (through using an e-mail address created through the Domain Name and social media) passes itself off as an employee of Complainant interested in offering the recipient employment with the Complainant (presumably as the first step in acquiring personal information or committing a scam on that recipient).  Such conduct is best characterized as "phishing".  Respondent's use of the Domain Name to impersonate Complainant for the purpose of engaging in a phishing scheme to acquire personal information 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 Mar. 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, October 30, 2023, Respondent had actual knowledge of Complainant's GENUS mark.  It would be implausible for an entity to register the domain name and purport to offer job opportunities with the Complainant absent knowledge of Complainant and its reputation in the GENUS 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 (indeed named employees of 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., FA 1622862 (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 <genusplc.org> domain name be CANCELLED.

 

 

 

 

Nicholas J.T. Smith, Panelist

Dated: March 19, 2024