Bechtel Group, Inc. v. Kristina Helms
Claim Number: FA1307001512079
Complainant is Bechtel Group, Inc. (“Complainant”), represented by Laurie H. van Loben Sels of Duane Morris, LLP, California, USA. Respondent is Kristina Helms (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bechtelus.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 29, 2013; the National Arbitration Forum received payment on July 29, 2013.
On July 31, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <bechtelus.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 July 31, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 20, 2013 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@bechtelus.com. Also on July 31, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 27, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions:
1. Respondent’s <bechtelus.com> domain name, the domain name at issue, is confusingly similar to Complainant’s BECHTEL mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant operates a holding entity for a multitude of international construction, procurement, and engineering firms under the BECHTEL mark. Complainant secured its rights in the BECHTEL mark through United States Patent and Trademark Office ("USPTO") trademark registration (e.g., Reg. No. 1,047,369 registered August 31, 1976).
Respondent has registered the confusingly similar <bechtelus.com> domain name which has merely added the geographic term “us” on to the BECHTEL mark. Respondent has not been known by this domain name, and Respondent is not otherwise licensed, authorized, permitted, or allowed to use Complainant’s BECHTEL mark. Respondent is using the website associated with the disputed domain name to make fraudulent job offers and send email to Internet users. This activity also involves the phishing of personal and financial information.
Respondent had at least constructive knowledge of Complainant’s rights when registering the disputed domain name but likely had actual knowledge due to Respondent’s decision to make fraudulent job offers for employment with Complainant’s company. Respondent registered the <bechtelus.com> domain name on June 19, 2013.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant operates a holding entity for a multitude of international construction, procurement, and engineering firms under the BECHTEL mark. Complainant secured its rights in the BECHTEL mark through USPTO trademark registration (e.g., Reg. No. 1,047,369 registered August 31, 1976). Complainant’s USPTO registration is a sufficient showing of Policy ¶ 4(a)(i) rights in the mark, especially when Respondent dwells in the United States as well. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Respondent has registered the confusingly similar <bechtelus.com> domain name which has merely added the geographic term “us” on to the BECHTEL mark. The domain name also includes the generic top-level domain (“gTLD”) “.com,” but this addition is not relevant to the analysis. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”). In Dollar Fin. Grp., Inc. v. Jewald & Assocs. Ltd., FA 96676 (Nat. Arb. Forum Apr. 6, 2001) the panel found the introduction of “US” to a mark in forming a domain name to underscore the confusing similarity of that domain name. Thus the Panel finds that the <bechtelus.com> domain name is confusingly similar to the BECHTEL mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent has not been known by the disputed domain name, and Respondent is not otherwise licensed, authorized, permitted, or allowed to use Complainant’s BECHTEL mark. The Panel notes that “kristina helms” is the listed WHOIS registrant. There is no evidentiary basis for finding that Respondent is commonly known by the <bechtelus.com> domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent has not taken any steps to develop a website, and instead uses the domain name to perpetrate fraud on unsuspecting Internet users. The website associated with the domain name is being used to promote false job offers to Internet users who are tricked into applying for a job under the belief that Respondent is Complainant. In HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) the panel declined to find any rights or legitimate interests in the respondent’s use of a confusingly similar domain name to trick Internet users into providing the respondent with personal information under the belief that the complainant and the respondent were one in the same. Respondent’s misrepresentations and deception illustrate that it lacks any rights or legitimate interests in this domain name under Policy ¶ 4(a)(ii).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent is using the domain name to make fraudulent job offers and send email to Internet users. This activity also involves the phishing of personal and financial information. Respondent offers jobs to Internet users and then sends emails back to them asking for personal information in exchange for “a starting salary of 8000 US DOLLARS per month” as well as “free medical and dental care” and a “free airline ticket.” In Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) the panel generally held that the use of a domain name to phish for personal and financial information was reprehensible bad faith under Policy ¶ 4(a)(iii). In this case however, Respondent’s scheme goes further than a bare plea for personal information—Respondent’s scheme is more developed and complex than the mere survey hyperlinks or identical webpages examined in most instances of phishing. See, e.g., H.J. Heinz Co. v. Peter Moore, FA 1376853 (Nat. Arb. Forum Apr. 18, 2011) (“The Panel finds that Respondent’s registration and use of the disputed domain name in order to phish for Internet users personal and financial information by way of fraudulent job offers and emails is demonstrative of bad faith under Policy ¶ 4(a)(iii)”). Respondent is exploiting Internet users in particularly bad faith, given the competitive nature of the modern job market, and the likelihood that Internet users will associate this type of behavior with Complainant and its BECHTEL mark. Fraudulent job offers such as those devised by Respondent through this domain name serve as independent and sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith. See generally Water Environment Federation v. wendy scott / 1105641qaqpd, FA 1437794 (Nat. Arb. Forum May 23, 2012) (finding that the use of fake job offers by the respondent constituted Policy ¶ 4(a)(iii) bad faith).
Respondent had at least constructive knowledge of Complainant’s rights when registering the <bechtelus.com> domain name but likely had actual knowledge due to Respondent’s decision to make fraudulent job offers for employment in Complainant’s company. The Panel finds that Respondent did in fact have actual knowledge of Complainant’s rights in the mark when registering these domain names, as inferred from the fact that Respondent’s only active use for the domain name is to trick and exploit individuals who hope to gain employment with Complainant. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bechtelus.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 28, 2013
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