DECISION

 

Momentive Performance Materials Quartz, Inc. v. Wesley Sardes

Claim Number: FA2402002086038

 

PARTIES

Complainant is Momentive Performance Materials Quartz, Inc. ("Complainant"), represented by Dina Roumiantseva of Tucker Ellis, LLP, California, USA. Respondent is Wesley Sardes ("Respondent"), Colorado, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <momentivtech.com>, registered with Wild West Domains, LLC.

 

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.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 28, 2024; Forum received payment on February 28, 2024.

 

On February 29, 2024, Wild West Domains, LLC confirmed by e-mail to Forum that the <momentivtech.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, LLC 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 March 5, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 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@momentivtech.com. Also on March 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 March 26, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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

1.       Respondent's <momentivtech.com> domain name is confusingly similar to Complainant's MOMENTIVE TECHNOLOGIES mark.

 

2.       Respondent does not have any rights or legitimate interests in the <momentivtech.com> domain name.

 

3.       Respondent registered and uses the <momentivtech.com> domain name in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant provides quartz and ceramic products and holds a registration for the MOMENTIVE TECHNOLOGIES mark with the World Intellectual Property Organization ("WIPO") (Reg. No. 2,194,545, registered February 11, 2021).

 

Respondent registered the <momentivtech.com> domain name on September 4, 2023, and uses it to conduct a 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 Panel finds that Complainant has rights in the MOMENTIVE TECHNOLOGIES mark through registration with WIPO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, "There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant's rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant's attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).") This premise is equally true for registrations with trademark authorities worldwide. See Red Hat, Inc. v. Muhammad Shahzad, FA 1787738 (Forum June 19, 2018) ("Registration of a mark with multiple trademark agencies is sufficient to demonstrate rights to a mark per Policy ¶ 4(a)(i).")

 

Respondent's <momentivtech.com> domain name uses a shortened version of Complainant's MOMENTIVE TECHNOLOGIES mark and simply adds the ".com" gTLD. These changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See State Farm v. Try Harder & Co., FA 94730 (Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant's mark "State Farm" because the domain only differed from the mark by a single dropped letter). The Panel thus finds that Respondent's <momentivtech.com> domain name is confusingly similar to Complainant's MOMENTIVE TECHNOLOGIES mark.

 

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

 

Rights or Legitimate Interests

Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("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.").

 

Complainant contends that Respondent has no rights or legitimate interests in the <momentivtech.com> domain name as Respondent is not commonly known by the domain name. Complainant has not given Respondent permission to use its MOMENTIVE TECHNOLOGIES mark in the disputed domain name.  The WHOIS identifies "Wesley Sardes" as the registrant.  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). 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); see also Navistar International Corporation v. N Rahmany, FA 1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). 

 

Complainant argues that Respondent does not use the <momentivtech.com> domain name for a bona fide offering of goods or service or a legitimate noncommercial or fair use by using it to conduct a phishing scheme. Using a disputed domain name for phishing is not a bona fide offering of goods or service or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).  See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) ("Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.") Complainant demonstrates that Respondent uses the disputed domain name to pose as Complainant and a potential customer of the recipient of a submission form, likely followed by the exchange of bank or other user information. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).

 

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

 

Registration and Use in Bad Faith

Complainant contends that Respondent registered and uses the <momentivtech.com> domain name in bad faith to conduct a phishing scheme. Registering a disputed domain name with the intent to pass off as a complainant and solicit personal information disrupts Complainant's business and evinces bad faith registration and use under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See UBS AG v. SMS Vice/Ubs, FA 1866179 (Forum Nov. 4, 2019) (finding bad faith where respondent registered and used the domain <ubscash.com> to disrupt the complainant's business and commercially benefit from the disputed domain name by attempting to impersonate complainant in order to conduct a fraudulent phishing scheme for commercial gain). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv).

 

The Panel also finds that Respondent had knowledge of Complainant's rights in the MOMENTIVE TECHNOLOGIES mark when it registered the disputed domain name, noting Respondent's use of Complainant's mark to pose as Complainant, establishing further bad faith under Policy ¶ 4(a)(iii). 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").

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(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 <momentivtech.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated: March 27, 2024