Garrett Transportation I Inc. v. Hei Ze Shang Zi
Claim Number: FA2102001933407
Complainant is Garrett Transportation I Inc. ("Complainant"), United States, represented by Lauren Beth Emerson of Leason Ellis, LLP, New York, USA. Respondent is Hei Ze Shang Zi ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <garrettmoti0n.com>, registered with NameSilo, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 24, 2021; the Forum received payment on February 24, 2021.
On February 25, 2021, NameSilo, LLC confirmed by email to the Forum that the <garrettmoti0n.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 February 25, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 17, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@garrettmoti0n.com. Also on February 25, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 March 23, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a developer of various technologies in the global transportation industry. Its parent entity is publicly traded on the New York Stock Exchange as GARRETT MOTION INC. Complainant and its predecessors have been in the transportation business since the 1930s. The business was acquired by Honeywell International Inc. and was spun off into an independent entity in 2018, but has been known by the name and mark GARRETT throughout its history. Complainant states that in 2017 Honeywell's transportation system business achieved over $3 billion in sales, the vast majority of which is attributable to goods and services offered under the GARRETT brand name. Complainant owns various trademark registrations for GARRETT and related marks in the United States and other jurisdictions, and claims that the GARRETT mark has become famous as a result of longstanding use. Complainant uses the domain name <garrettmotion.com> in connection with its business.
Respondent registered the disputed domain name <garrettmoti0n.com> in September 2020. The domain name is being used in connection with a fraudulent phishing scheme, in which email messages have been sent to one of Complainant's customers impersonating an employee of Complainant and seeking to divert payments to an account controlled by Respondent. The domain name resolves to a parked web page containing links to third-party sites. Complainant states that Respondent is not commonly known by the disputed domain name and that Complainant has not licensed or authorized Respondent to use its mark.
Complainant contends on the above grounds that the disputed domain name <garrettmoti0n.com> is confusingly similar to its GARRETT mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <garrettmoti0n.com> incorporates Complainant's registered GARRETT trademark, adding the descriptive term "motion" (which also appears in Complainant's domain name), misspelled as "moti0n," and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Garrett Transportation I Inc. v. Ben Flajnik, FA 1927368 (Forum Feb. 5, 2021) (finding <garrettmotlon.com> confusingly similar to GARRETT); Wabash National, L.P. v. Stan Chris, FA 1773748 (Forum Mar. 26, 2018) (finding <wabashnati0nal.com> confusingly similar to WABASH NATIONAL). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to impersonate Complainant in connection with a fraudulent scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., K. HOV IP, II, Inc. v. Carolyn Poirier, FA 1929141 (Forum Feb. 18, 2021) (finding lack of rights or interests in similar circumstances); Guidehouse LLP v. Timothy Jeff, FA 1905298 (Forum Aug. 24, 2020) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's mark and identical to Complainant's domain name but for the introduction of a typographical error, and is using it in connection with a fraudulent scheme. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Guidehouse LLP v. Timothy Jeff, supra (finding bad faith in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <garrettmoti0n.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 24, 2021
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