Leidos, Inc. v. Richard Sydney
Claim Number: FA1905001841622
Complainant is Leidos, Inc. (“Complainant”), represented by Jennifer Elgin of Bean, Kinney & Korman P.C., Virginia, United States. Respondent is Richard Sydney (“Respondent”), Nebraska, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <leidois.com>, registered with NameCheap, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 3, 2019; the Forum received payment on May 3, 2019.
On May 9, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <leidois.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 May 14, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 3, 2019 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@leidois.com. Also on May 14, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On June 6, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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.
A. Complainant
Complainant contends as follows:
Complainant has rights in the LEIDOS mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <leidois.com> domain name is confusingly similar to Complainant’s LEIDOS mark as the domain name incorporates the mark in its entirety and adds only the single letter “i” before the final “s” and the “.com” generic top-level domain name (“gTLD”).
Respondent lacks rights or legitimate interests in the <leidois.com> domain name as Respondent is not commonly known by the disputed domain name. Additionally, Respondent has failed to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent is using the <leidois.com> domain name to establish email addresses similar to Complainant’s in order to phish and defraud Complainant and its partners. Furthermore, the domain name resolves to parked webpages. Respondent also uses the <leidois.com> domain name to redirect internet users to sponsor listings for commercial gain.
Respondent registered and used the domain name in bad faith because Respondent used an email address to pass off as Complainant. Furthermore, Respondent had actual knowledge of Complainant’s rights in the LEIDOS mark from the notoriety of Complainant’s trademark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the LEIDOS mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the LEIDOS trademark.
Respondent’s at-issue domain name addresses a webpage offering links to third parties and Respondent further uses the domain name to host email addresses which facilitate Respondent passing itself off as Complainant.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for LEIDOS is conclusive evidence of its rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <leidois.com> domain name contains Complainant’s LEIDOS trademark with an “I” inserted before the mark’s “s.” The domain concludes with the top-level domain name “.com.” Respondent’s misspelling of Complainant’s trademark and adding of a top-level domain name fails to distinguish Respondent’s domain name from the Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s trademark under Policy ¶ 4(a)(i). See ModCloth, Inc. v. James McAvoy, FA 1629102 (Forum Aug. 16, 2015) (“The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark because it differs from Complainant’s mark by merely adding the letter ‘L’ . . . ”); see also Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the <leidois.com> domain name identifies the domain name’s registrant as “Richard Sydney” and the full record before the Panel contains no evidence that tends to prove that Respondent is commonly known by <leidois.com>. The Panel therefore concludes that Respondent is not commonly known by the <leidois.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also, Navistar International Corporation v. N Rahmany, FA1505001620789 (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).
Furthermore, Respondent apparently planned to impersonate Complainant in order to facilitate an email phishing scheme. Complainant shows that Respondent set up the <leidois.com> domain name to host email. In attempting to impersonate Complainant, Respondent falsifies email from its confusingly similar domain name and in such email show the signature line of one of Complainant’s employee. Through this charade, Respondent sought to defraud Complainant and its partners. Respondent’s use of the at-issue domain name to pass itself off as Complainant in furtherance of a phishing scheme is not indicative of rights or legitimate interests 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)”).
In addition to hosting email, the domain name also addresses a webpage with various random links including links to car insurance, credit cards, and airline flights. This use of the confusingly similar domain name likewise cuts against Respondent having acquired rights or legitimate interests in the at-issue domain name through the domain name’s use in connection with a bone fide offering of goods or services. See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstances lead the Panel to conclude that Respondent acted in bad faith regarding the <leidois.com> domain name pursuant to paragraph 4(a)(iii) of the Policy.
First as mentioned above regarding rights and legitimate interests, Respondent registered and uses the <leidois.com> domain name to facilitate passing itself off as Complainant by sending email from @ <leidois.com> pretending to be from one of Complainant’s employees. One such email contained a signature block using the name of one of Complainant’s employees. Respondent’s use of the domain name to further a plan to pass itself off as Complainant demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also, Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)).
Next and as also mentioned above, Respondent uses the at-issue domain name to address a webpage sponsoring links to third parties with no apparent relation to Complainant. The webpage includes links to car insurance, credit cards, and airline flights. Such use of the at-issue domain name demonstrates Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”).
Additionally, Respondent’s overt misspelling of Complainant’s trademark in the at-issue domain name shows that Respondent is engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name hoping that internet users will either: 1) inadvertently type the malformed string when searching for products or services related to the domain name’s target trademark; and/or 2) in viewing the domain name will confuse the domain name with its target trademark. Here, in creating the at-issue domain name Respondent misspells Complainant’s LEIDOS trademark by inserting an “i” before the trademark’s “s” so that email recipients are prone to confuse the sender’s domain name with Complainant’s real email address. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also, Artemis Marketing Corp. v. ICS INC et al, Forum Case No. D2019-0141 (Apr. 8, 2019) (“The altering of one or just a few characters is the very nature of typosquatting”).
Finally, Respondent registered the <leidois.com> domain name knowing that Complainant had trademark rights in LEIDOS. Respondent’s prior knowledge of the LEIDOS trademark is evident from the trademark’s notoriety and from Respondent’s use of the at-issue domain name to pass itself off as Complainant as discussed above. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <leidois.com> domain name in bad faith pursuant to 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").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <leidois.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 6, 2019
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