Articulate Global, LLC v. micheal joubran
Claim Number: FA2205001997689
Complainant is Articulate Global, LLC (“Complainant”), represented by Caitlin R. Byczko of Barnes & Thornburg LLP, Indiana, USA. Respondent is micheal joubran (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <artciulate.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 24, 2022; the Forum received payment on May 24, 2022.
On May 25, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <artciulate.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 May 26, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 15, 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@artciulate.com. Also on May 26, 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 June 23, 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 leading developer of e-learning and training software, content, and resources. Founded in 2002, for twenty years Complainant has worked to change the way the world learns with products that make it easy to create, distribute, and manage online training. Today, Complainant has over 359 employees across 7 countries. Complainant has been a fully remote organization since its founding—meaning it has not only survived, but thrived with a 100% virtual workforce for two decades. The world’s largest and most successful companies trust Complainant’s software to create tools for workplace training and learning. Of note, all 100 of the Fortune 100 companies use Complainant’s products to train employees. In the last 12 months alone, users have created over 3 million courses and over 14 million lessons using Complainant’s products. Complainant claims rights in the ARTICULATE mark through its registration with multiple trademark agencies, including in the United States in 2004.
Complainant alleges that the disputed domain name is identical or confusingly similar to its ARTICULATE mark because it incorporates the entirety of the mark in a misspelled form, transposing the “c” and the “i”, and merely adds the generic top-level domain name (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its ARTICULATE mark in any way. Respondent does not use the disputed domain name in connection with any bona fide offering of goods or services, nor for a legitimate non-commercial or fair use. Instead, Respondent sends emails associated with the domain name to impersonate Complainant in furtherance of a phishing scheme. Specifically, Respondent, purporting to work for Complainant’s accounts receivable department, requests that email recipients redirect their payments to a new bank account, presumably controlled by Respondent. Further, the resolving website is a parked page displaying advertising links not related to Complainant. Additionally, Respondent uses the disputed domain name to typosquat on a common misspelling of Complainant’s mark. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. First, Respondent uses the disputed domain name to disrupt Complainant’s business through impersonating Complainant in fraudulent emails to perpetuate a phishing scheme. Moreover, the disputed domain name resolves to a parked website displaying pay-per-click advertising hyperlinks to goods and services that are not related to those of Complainant. Further, Respondent’s domain name is an example of typosquatting. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ARTICULATE and uses it to market e-learning and training software, content, and resources.
Complainant’s registration of its mark dates back to 2004.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to impersonate Complainant in fraudulent phishing emails. The signature block of the fraudulent emails displays Complainant’s mark. The resolving website displays pay-per-click advertising hyperlinks to products and services not related to those of 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 disputed domain name is a misspelling of Complainant’s ARTICULATE mark (the “c” and the “i” are transposed), with the mere addition of the generic top-level domain name (“gTLD”) “.com”. Under Policy ¶ 4(a)(i), misspelling a mark by transposing two letters is generally not sufficient in distinguishing a domain name from a protected mark. See RetailMeNot, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1625879 (Forum Aug. 6, 2015) (finding confusing similarity while Respondent merely transposed the letters “a” and “t” in the RETAILMENOT mark in crafting the <reatilmenot.com> domain name.). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to 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 the Policy, WHOIS information may be used to determine whether a respondent is commonly known by a domain name. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). Here, the WHOIS information of record shows that the registrant of the disputed domain name is “micheal joubran”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name is used in furtherance of a fraudulent email phishing scheme. Specifically, Complainant provides evidence showing that Respondent, purporting to work for Complainant’s accounts receivable department, requests that email recipients redirect their payments to a new bank account, presumably controlled by Respondent. This is not a bona fide offering of goods or services, nor a legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); 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 purportedly from agents of complainant to be 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)). Thus 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) or (iii).
The disputed domain name resolves to a parked website with links to various third parties unrelated to Complainant’s business. Use of a domain name to host a parked website with pay-per-click hyperlinks does not demonstrate either a bona fide offer or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Bloomberg Finance L.P. v. Syed Hussain / IBN7 Media Group, FA 1721384 (Forum Apr. 26, 2017) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Therefore, on this ground also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offer of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Finally, Respondent uses the disputed domain name in order to typosquat. A Respondent’s use of a common typographical error in the disputed domain name constitutes typosquatting and may demonstrate a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii). Therefore the Panel finds that Respondent’s typosquatting demonstrates its lack of rights or legitimate interests under Policy ¶ 4(a)(ii).
For all the above reasons, 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 silence 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, the disputed domain name is used to impersonate Complainant in furtherance of a fraudulent phishing scheme. A respondent’s use of domain name in association with emails purporting to be an agent of a complainant is generally found to be disruptive of Complainant’s business and demonstrates bad faith Policy ¶ 4(b)(iii). 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)”). Therefore the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Further, also as already noted, registration of the disputed domain name constitutes typosquatting. A respondent’s deliberate introduction of typographical errors into a disputed domain name constitutes typosquatting and demonstrates a respondent’s bad faith registration and use. See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Therefore the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the fraudulent phishing emails displays Complainant’s mark. 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 <artciulate.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 23, 2022
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