Koch Industries Inc. v. Alicia Hunter / Flexera Software LLC
Claim Number: FA1912001877231
Complainant is Koch Industries Inc. (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird LLP, Georgia, United States. Respondent is Alicia Hunter / Flexera Software LLC (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kohcind.com>, registered with GoDaddy.com, LLC.
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 December 30, 2019; the Forum received payment on December 30, 2019.
On December 31, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kohcind.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 January 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 22, 2020 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@kohcind.com. Also on January 2, 2020, 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 January 24, 2020, 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 operates a dynamic and diverse group of companies offering a variety of goods and services including asphalt, chemicals, energy, fertilizers, fibers, minerals, natural gas, plastics, petroleum, lumber pulp and paper, commodities trading, and ranching, among others.
Complainant has rights in the KOCH mark through its registration with the various trademark agencies around the world, including Brazil.
Respondent’s <kohcind.com> domain name is confusingly similar to Complainant’s mark. Respondent’s domain name uses a misspelling of Complainant’s KOCH mark and the “ind” abbreviation for “Industries” in addition to the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <kohcind.com> domain name as Respondent is not commonly known by the disputed domain name. Respondent also fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent is holding the disputed domain name inactive. Additionally, Respondent uses the disputed domain name in association with an email phishing scheme in an attempt to gain personal information.
Respondent registered and used the <kohcind.com> domain name in bad faith as Respondent attempts to pass itself off as Complainant through email. Respondent engages in typosquatting by using a misspelled version of Complainant’s mark. Respond was aware of Complainant’s KOCH trademark when it registered the at-issue domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in KOCH.
Respondent is not affiliated with Complainant and is not authorized to use the KOCH mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in KOCH.
Respondent uses the at-issue domain name to impersonate Complainant via email and thereby perpetrate fraud on third parties.
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 registration of the KOCH mark with the various national trademark registries demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Additionally, Respondent’s <kohcind.com> domain name incorporates a misspelled variant of Complainant’s KOCH mark with its “c” and “h” transposed. The misspelled trademark is followed by the generic abbreviation “ind” (industries) and the top-level domain “.com.” Under the Policy these differences do nothing to distinguish the at-issue domain name from Complainant’s trademark. In fact, the inclusion of the generic term “ind” is also used in one of Complainant’s legitimate domain name, i.e. <kochind.com>, and thus only adds to any confusion between the KOCH trademark and Respondent’s domain name. Therefore, the Panel concludes that Respondent’s <kohcind.com> domain name is confusingly similar to Complainant’s KOCH trademark. See Universal Protein Supplements Corporation d/b/a Universal Nutrition v. Universal Nutrition, FA 1510186 (Forum Aug. 28, 2013) (“<uniprotein.com> domain name is, as alleged in the Complaint, an amalgamation of a common abbreviation of Complainant’s UNIVERSAL trademark and the term ‘protein,’ which describes an aspect of Complainant’s business, plus the generic Top Level Domain (‘gTLD’) ‘.com.’”), see also Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (“Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”).
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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Alicia Hunter / Flexera Software LLC” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <kohcind.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <kohcind.com> domain name for the purposes of Policy ¶ 4(c)(ii). See 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).
Additionally, Respondent uses its <kohcind.com> domain name to impersonate Complainant in furtherance of an email phishing scheme to extract private financial information from customers of Complainant. Respondent’s at-issue domain name domain name has no active webpage. Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Agilent Technologies, Inc. v. Ahmed / My Company, FA 1791549 (Forum July 12, 2018) (“Complainant provides a copy of a redacted email showing a phishing scheme wherein Respondent impersonates Complainant’s employees in an attempt to have customers transfer large sums of money into Respondent’s bank accounts. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).”); Time Warner Inc. v. Zhichao Yang, FA1610001700364 (Forum Dec. 12, 2016) (“Using a domain name for … a phishing scam does not constitute 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 under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and interests, Respondent uses the at-issue confusingly similar domain name to host email in furtherance of an email scam aimed at defrauding third parties into giving up private financial data. Respondent’s use of its <kohcind.com> domain name to steal Complainant’s identity and convey fraudulent messages to Complainant’s customers disrupts Complainant’s business and demonstrates bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv). See The Hackett Group, Inc. v. Brian Herns/The Hackett Group, FA 1597465 (Forum, Feb. 6, 2015) (finding that the use of emails associated with the domain name to send fraudulent emails contains the requisite competitive nature under Policy ¶ 4(b)(iii) and this is evidence of bad faith disruption); see also Indeed, Inc. v. Zhiteng Sun, FA 1751940 (Forum Nov. 1, 2017) (finding that the respondent's use of <lndeed.net> to misrepresent itself as the complainant by imitating the complainant’s website design supported a finding of bad faith).
Next, Respondent is engaging 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 inadvertently type the malformed string when searching for products or services related to the domain name’s target trademark and/or in viewing the domain name will confuse the domain name with its target trademark. Respondent formed the at-issue domain name by swapping the “c” and “h” in Complainant’s KOCH trademark. 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)).
Finally, Respondent had actual knowledge of Complainant’s rights in the KOCH mark and thus the confusingly similar at-issue domain name when Respondent registered <kohcind.com>. Respondent’s actual knowledge is evident from Respondent’s use of fraudulent emails originating from the <kohcind.com> domain name and pretending to be from one of Complainant’s employees, as well as from the KOCH trademark’s notoriety. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s 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); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kohcind.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 24, 2020
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