Bentley Systems, Incorporated v. Anton Rodyanskiy
Claim Number: FA2212002022830
Complainant is Bentley Systems, Incorporated (“Complainant”), represented by James A. Blanchette of Cesari & McKenna LLP, Massachusetts, USA. Respondent is Anton Rodyanskiy (“Respondent”), Lithuania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <benltey.com>, registered with Tucows Domains Inc.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on December 5, 2022; Forum received payment on December 5, 2022.
On December 6, 2022, Tucows Domains Inc. confirmed by e-mail to Forum that the <benltey.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 December 8, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 28, 2022 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 email@example.com. Also on December 8, 2022, 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 3, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant, Bentley Systems, Incorporated, is a software development company that creates computer aided design (CAD) and other software applications tailored to the design and maintenance of infrastructure, such as roadways, bridges, airports, skyscrapers, industrial and power plants, utility networks and the like. It operates a website at <www.bentley.com>. Complainant has rights in the trademark BENTLEY through its use in commerce and registrations in various jurisdictions, such as the United States Patent and Trademark Office (“USPTO”), the European Intellectual Property Office (“EUIPO”), the China National Intellectual Property Administration (“CNIPA”), and others. Respondent’s <benltey.com> domain name is confusingly similar to the BENTLEY mark as it merely transposes the “t” and the “l” in Complainant’s mark and adds the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <benltey.com> domain name since Respondent is not licensed or authorized to use Complainant’s BENTLEY mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services nor does it make a legitimate noncommercial or fair use thereof. Instead, Respondent is impersonating Complainant and copying its user login screen in an attempt to perpetrate a phishing scheme.
Respondent registered and uses the <benltey.com> domain name in bad faith. First, Respondent uses the goodwill associated with Complainant’s BENTLEY mark to attract users with a false impression of association with Complainant and to disrupt Complainant’s business. Further, Respondent uses the confusingly similar nature of the disputed domain name to copy Complainant’s user login page in an attempt to perpetrate a phishing scheme. Finally, Respondent’s registration and use of the <benltey.com> domain name is an example of typosquatting.
Respondent failed to submit a Response in this proceeding.
- Complainant has demonstrated its ownership of rights in the BENTLEY trademark and the <benltey.com> domain name is confusingly similar to the mark;
- Respondent has no rights or legitimate interests in the disputed domain name where it is not commonly known thereby and it uses the domain name to copy Complainant’s login page as part of a phishing scheme; and
- Respondent’s use of the disputed domain name in furtherance of passing itself off as Complainant and pursuing phishing activity indicates that the domain name was registered and is used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted 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”).
Complainant claims rights in the BENTLEY mark through multiple trademark registrations with the USPTO, the EUIPO, the CNIPA, and other governmental offices. Registration of a mark with such trademark offices is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See Emerson Electric Co. v. Cai Jian Lin / Shen Zhen Shi colorsun Zi Dong Hua You Xian Gong Si, FA 1798802 (Forum Aug. 31, 2018) (“Registering a mark with multiple trademark agencies around the world is sufficient to establish rights in a mark for the purposes of Policy ¶ 4(a)(i).”) Complainant provides screenshots of its various trademark registration certificates and so the Panel finds that Complainant has demonstrated rights in the BENTLEY mark under one component of Policy ¶ 4(a)(i).
Next, Complainant argues that the <benltey.com> domain name is confusingly similar to its BENTLEY mark since it merely transposes the letters “t” and “l” in the word BENTLEY and adds the “.com” gTLD. Transposing letters in a mark has been found insufficient to defeat a finding of confusing similarity. See RingCentral, Inc. v. Aug.ine Rivera, FA 1562126 (Forum July 1, 2014) (“Transposition of letters in [a] trademark does not distinguish the domain name.”). Similarly, adding the “.com” gTLD is typically irrelevant for purposes of Policy ¶ 4(a)(i) analysis. See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”). Based on the minor differences mentioned above, the Panel find that Respondent’s <benltey.com> domain name is confusingly similar to Complainant’s BENTLEY mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that 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 argues that Respondent has no rights or legitimate interests in the <benltey.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has never licensed rights to or authorized Respondent to use the BENTLEY mark. In considering this issue, WHOIS information may be used to determine whether a respondent is commonly known by 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). In addition, where there is no evidence to indicate that a complainant has authorized the use of a mark, it supports the conclusion that a respondent is not commonly known by the disputed domain name and thus lacks any rights or legitimate interest in the disputed 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 the <benltey.com> domain name, as verified to Forum by the concerned Registrar, lists the registrant as “Anton Rodyanskiy” and there is no evidence that Respondent is known otherwise. Further, Complainant asserts that Respondent was not authorized, licensed, or otherwise permitted to use the BENTLEY mark and Respondent, having not participated in these proceedings, does not refute this. Therefore, the Panel finds no evidence upon which to conclude that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Next, Complainant contends that Respondent seeks to trade upon the name recognition of the BENTLEY mark by diverting internet traffic to a site that mimics one of Complainant’s own webpages in furtherance of a phishing scheme. Panels have found that use of a domain name to divert customers away from a complainant does not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug.21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”) In addition, phishing has consistently been held not to satisfy Policy ¶¶ 4(c)(i) or (iii). See, e.g., 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.”) In the present case, Complainant provides a screenshot of the <benltey.com> website showing that it resolves to a “Sign In” screen that is nearly identical to a previous “Sign In” page used by Complainant. Respondent’s site displays the BENTLEY mark in the same green logo graphic as used by Complainant and it contains the text “Access your Bentley Services” which is the identical text formerly used by Complainant on its own customer login page. Below this, Respondent’s website contains two blank fields into which users are invited to input their email address and password and then click on a green “Sign In” button. When the user does so, they are redirected to a page at the Wikipedia.org website titled “Typosquatting” which reads in part “Typosquatting, also called URL hijacking, a sting site, or a fake URL, is a form of cybersquatting, and possibly brandjacking which relies on mistakes such as typos made by Internet users when inputting a website address into a web browser.” Complainant claims that, by employing this redirect, “Respondent appears to flaunt their typosquatting to their victims once the [sic] have tricked them into revealing confidential information.” Respondent has not filed a Response or made any other submission in this case and so it does not dispute this characterization of its actions. As Complainant has presented a prima facie case that Respondent is passing itself off and confusing customers by mimicking Complainant’s website, it finds, by a preponderance of the available evidence, that Respondent lacks rights or legitimate interests as it is not making a bona fide offering of goods or services nor is it making a legitimate noncommercial or fair use of the <benltey.com> domain name under Policy ¶¶ 4(c)(i) and (iii).
Complainant argues that Respondent registered and uses the <benltey.com> domain name in bad faith by trading off of Complainant’s goodwill in the BENTLEY mark, deceiving customers and disrupting business through a site that mimics Complainant as part of a phishing scheme. Previous Panels have determined that a respondent’s use of a domain name to attract Internet traffic to a site that passes itself off as a complainant evinces bad faith disruption of a complainant’s business pursuant to Policy ¶ 4(b)(iii). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)). Passing off, particularly in pursuit of phishing activity, has also been held as evidence of bad faith attraction for commercial gain pursuant to Policy ¶ 4(b)(iv). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”) As noted, Respondent’s webpage displays a “Sign In” screen that is nearly identical to a previous “Sign In” page used by Complainant, using similar text, layout, and colors. As Respondent has not participated in this case to explain its actions, the Panel finds sufficient evidence upon which to conclude that Respondent is passing itself off as Complainant and taking advantage of the BENTLEY mark in an attempt at phishing the login credentials of unsuspecting users. This clearly supports a finding of bad faith registration and use under Policy ¶ 4(b)(iii) and ¶ 4(b)(iv).
Lastly, Complainant claims that Respondent is engaged in typosquatting, which is further evidence of bad faith. This is consistent with prior Policy decisions. See, e.g., Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). In registering and using the <benltey.com> domain name, and misspelling the BENTLEY mark in which two letters are merely transposed, Respondent is engaged in typosquatting and this lends further support to the above finding of bad faith pursuant to Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <benltey.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: January 6, 2023
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