DECISION

 

Textron Innovations Inc. v. SKS service / SKS collecting service

Claim Number: FA2409002115563

 

PARTIES

Complainant is Textron Innovations Inc. ("Complainant"), represented by Jeremiah A. Pastrick, Indiana, USA. Respondent is SKS service / SKS collecting service ("Respondent"), Michigan, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <lycomings.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 September 16, 2024; Forum received payment on September 16, 2024.

 

On September 16, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <lycomings.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 September 18, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 8, 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@lycomings.com. Also on September 18, 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 October 9, 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 is not only one of the world's best known multi-industry companies, it is a pioneer of the diversified business model. Founded in 1923, Complainant has grown into a network of businesses with total revenues of $12.4 billion (Complainant is ranked 265th on the FORTUNE 500 list of largest U.S. companies), with approximately 34,000 employees with facilities and presence in 25 countries, serving a diverse and global customer base. Complainant's companies include some of the most respected global brands in transportation, including Bell, E-Z-GO golf carts and Cessna aircraft. Located in Williamsport, PA, Lycoming Engines, a licensee of Complainant, is a major American manufacturer of aircraft engines. Since building its first aircraft engine in 1929, Lycoming Engines has specialized in making piston aircraft engines for both fixed wing and rotary aircraft. Lycoming Engines power over 200,000 aircraft – or half the world's general aviation fleet. Lycoming Engines operates a web site at <http://www.lycoming.com> that features information regarding the company, its history, its products and related information. Lycoming Engines utilizes the top-level domain <lycoming.com> for its email address, such that a real Lycoming Engines email extension would appear as "@lycoming.com". Complainant asserts rights in the LYCOMING mark through its registration in the United States in 1967.

 

Complainant alleges that the disputed domain name is confusingly similar to its LYCOMING mark as it consists of a misspelling of the mark, merely adding the ".com" generic top-level domain ("gTLD"). Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent's use of its mark. Respondent is not making a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the disputed domain name. Rather, the disputed domain name does not resolve to an active website, and Respondent uses the disputed domain name to transmit emails falsely purporting to originate from Complainant to attempt to divert payments to bank accounts not associated with Complainant; the signature block of the fraudulent phishing emails displays Complainant's mark and logo. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent has engaged in a fraudulent email phishing scheme, attempting to pass itself off as Complainant. Respondent had actual knowledge of the mark and Complainant's rights therein. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark LYCOMING and uses it to market airplane engines.

 

Complainant's registration of its mark dates back to 1967.

 

The disputed domain name was registered in 2024.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

Respondent is using the disputed domain name to send fraudulent emails in furtherance of a phishing scheme; the signature block of the fraudulent emails displays Complainant's mark and logo.

 

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 is confusingly similar to Complainant's LYCOMING mark, as the name is a minor misspelling of the mark (the letter "s" is added). Addition of a gTLD (".com") and the addition of one letter to a mark is not sufficient to overcome a confusingly similar analysis per Policy ¶ 4(a)(i). See Liberty Mutual Insurance Company v. Texas Internet, FA1006001330686 (Forum August 3, 2010) (holding <libertymutul.com> domain name is confusingly similar to Complainant's LIBERTY MUTUAL mark as the respondent simply omitted the letter "a"); see also Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) ("The relevant comparison then resolves to the trademark, TWITCH, with the term, 'titch,' which, as can be readily seen, merely removes the letter 'w' from the trademark.  In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy."); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) ("The domain name contains the mark in its entirety, with only the addition of the generic letters 'sb' and the digits '2018,' plus the generic Top Level Domain ("gTLD") '.com.'  These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy."). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant's mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not authorized Respondent to use its LYCOMING mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) ("We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way.  Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as "Usama Ramzan," which does not resemble the domain name.  On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii)."). Here, the WHOIS information of record identifies the registrant as "SKS service / SKS collecting service". The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.

 

Complainant presents evidence showing that Respondent uses the disputed domain name to conduct a phishing scheme. Specifically, Respondent uses the disputed domain name to transmit emails falsely purporting to originate from Complainant in order to attempt to divert funds. Panels have found such use by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum February 26, 2015) ("The Panel agrees that the respondent's apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)."); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) ("The Panel finds that Respondent's attempt to "phish" for users' personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."). Therefore, the Panel finds that Respondent's use of the disputed domain name constitutes neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for his 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 noted above, Respondent is attempting to pass itself off as Complainant by using the disputed domain name in email addresses, fraudulently to attempt to divert payments. This behavior is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Yahoo! Inc. v. Kalra, FA 1650447 (Forum Dec. 31, 2015); Qatalyst Partners LP v. Devimore, FA 1393436 (Forum Jul. 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use.); see also National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant's President and CEO); see also Capital One Financial Corporation and Capital One Bank v. Austin Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith where respondent used complainant's mark to fraudulently induce transfer of credit and personal identification information). Consequently, the Panel finds that Respondent registered and is using the disputed domain name in bad faith in the sense of the Policy.

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the signature block of the fraudulent phishing emails displays Complainant's mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); 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). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

Finally, Respondent's bad faith is indicated by the practice of typosquatting as Respondent has merely added one letter to Complainant's mark in order to create the disputed domain name. Use of a domain name to typosquat in an attempt to gain commercially from the notoriety of a complainant's mark is evidence of bad faith per Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) ("Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name's registrant."). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(a)(iii) 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 <lycomings.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: October 9, 2024