XPO Logistics, Inc. v. andjjfd khre / mcyru
Claim Number: FA2204001991704
Complainant is XPO Logistics, Inc. (“Complainant”), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, New York, USA. Respondent is andjjfd khre / mcyru (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xpo-logistics.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 9, 2022; the Forum received payment on April 9, 2022.
On April 11, 2022, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to the Forum that the <xpo-logistics.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 April 13, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 3, 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 postmaster@xpo-logistics.com. Also on April 13, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 9, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a provider of transportation and logistics solutions. Since 2011, Complainant has delivered customized transportation solutions to the most successful companies in the world using massive capacity and cutting-edge technology. Complainant’s services are primarily focused on what is known as (i) Less-Than-Truckload (LTL), a shipping service for relatively small loads or quantities of freight, and (ii) Truck Brokerage, a service that connects independent road carriers with companies that need to ship materials, parts, or finished goods. Currently, Complainant is the second largest freight broker worldwide with approximately 98,000 registered carriers globally and among the top three LTL providers in North America with approximately 7,900 tractors and 25,800 trailers. Complainant has been recognized as one of the largest and most-watched transportation companies in the world. Since 2016, Complainant has been included in the Fortune 500 list of the largest U.S. corporations based on revenue and in 2021 ranked 190th on the Fortune 500 list. Complainant has also been listed amongst the top performing US companies (No. 1184) in the Forbes Global 2000 Report for 2021. Complainant claims rights in the XPO LOGISTICS mark through its registration in the United States in 2012. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is identical or confusingly similar to its XPO LOGISTICS mark because it consists of the mark, with the incorporation of a hyphen and the addition of the “.com” generic top-level domain (gTLD). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have any rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name nor has Respondent been authorized to use Complainant’s XPO LOGISTICS mark. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because it uses the disputed domain name in furtherance of a fraudulent phishing scheme. Specifically, Respondent used the disputed domain name in emails to impersonate one of Complainant’s executives; the emails were sent to organizations that do business with Complainant and they requested copies of outstanding invoices; the signature block of the fraudulent emails displayed Complainant’s mark and logo. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent uses it to pass off as Complainant over email in furtherance of a fraudulent phishing scheme. Respondent acted with actual knowledge of Complainant’s rights in the XPO LOGISTICS mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark XPO LOGISTICS and uses it to provide transportation and logistics solutions.
Complainant’s rights in its mark date back to 2012.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name is used in furtherance of a fraudulent email phishing scheme; the signature block of the fraudulent emails displays Complainant’s mark and logo.
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 disputed domain name consists of Complainant’s XPO LOGISTICS mark, with the incorporation of a hyphen and the addition of the “.com” generic top-level domain (gTLD). A domain name may be found to be identical or confusingly similar to a complainant’s mark, under Policy ¶ 4(a)(i), despite the addition of a hyphen and a gTLD. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug. 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Therefore, the Panel finds that the <xpo-logistics.com> domain name is confusingly similar to Complainant’s XPO LOGISTICS mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(a)(ii), absent a reply, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the Registrant as “andffjd khre”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. Specifically, Complainant provides evidence showing that Respondent used the disputed domain name in emails to impersonate one of Complainant’s executives; the emails were sent to organizations that do business with Complainant and they requested copies of outstanding invoices; the signature block of the fraudulent emails displayed Complainant’s mark and logo. Use of a domain name to pass off as a complainant in furtherance of a phishing scheme may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also 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.”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its 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 already noted, Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. Use of a domain name to send fraudulent emails may be evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See 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)); see also 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)”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith in bad faith under Policy ¶ 4(b)(iii) and/or (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the fraudulent 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <xpo-logistics.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 10, 2022
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