Infineon Technologies AG v. mustafa mashari
Claim Number: FA1505001619868
Complainant is Infineon Technologies AG (“Complainant”), represented by Michael Guntersdorfer, Germany. Respondent is mustafa mashari (“Respondent”), United Arab Emirates.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <infineonhr.info>, 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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 18, 2015; the Forum received payment on May 18, 2015.
On May 20, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <infineonhr.info> 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 27, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 16, 2015 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@infineonhr.info. Also on May 27, 2015, 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 18, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
(i) Complainant is a global semiconductor company founded in 1999 out of the Siemens Semiconductor Group and has about five million dollars in annual revenue. Complainant uses the INFINEON mark to identify its business and has registered the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,516,259, registered December 11, 2001; Reg. No. 3,267,884, registered July 24, 2007). Respondent’s <infineonhr.info> domain name merely adds the two letters “hr” and the “.info” generic top-level domain (“gTLD”) suffix to the mark, thereby creating a confusingly similar domain name under Policy ¶ 4(a)(i).
(ii) Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the <infineonhr.info> domain name. Further, no bona fide offering of goods or services or any legitimate noncommercial or fair use has been evidenced dating back to the domain’s registration as it previously resolved to a “parked page” and currently bears no content. Further, Respondent has used the domain name in connection with a fraudulent scheme to “phish” for Internet users’ personal information via emails where it attempts to pass itself off as a representative of Complainant’s human resources department interested in hiring new employees.
(iii) Respondent registered and used the <infineonhr.info> domain name in bad faith. Respondent has used its guile to fraudulently gather Internet users’ personal information in a phishing scheme, and to redirect them to <lmxsoft.net> to induce them to download software, an activity from which Respondent presumably profited while attempting to pass itself off as a human resources representative of Complainant’s company. Such use evinces Respondent’s attraction for commercial gain under Policy ¶ 4(b)(iv) and demonstrates Respondent’s actual and/or constructive knowledge of Complainant as it was acting as an HR representative of Complainant in an unauthorized manner as per Policy ¶ 4(a)(iii).
B. Respondent
Respondent did not submit a response to the complaint. The Panel notes that the <infineonhr.info> domain name was registered on April 21, 2015.
Complainant established that it had rights in the mark contained in the disputed domain name. The disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name 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(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 is a global semiconductor company founded in 1999 out of the Siemens Semiconductor Group and has alleged it nets about five million dollars in annual revenue. Complainant purportedly uses the INFINEON mark to identify its business, and registered the mark with the USPTO (Reg. No. 2,516,259, registered December 11, 2001; Reg. No. 3,267,884, registered July 24, 2007), arguing that it has rights in the mark through its trademark registrations. There is a consensus amongst panels that USPTO registrations evince Policy ¶ 4(a)(i) rights in a mark, even where a complainant and respondent operate in different countries. See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (holding that a trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Accordingly, the Panel finds that Complainant has rights in the INFINEON mark per Policy ¶ 4(a)(i).
Next, Complainant urges that Respondent’s <infineonhr.info> domain name merely adds the two letters “hr” and the “.info” gTLD suffix to the mark, thereby creating a confusingly similar domain name under Policy ¶ 4(a)(i). Panels have found such augmentations satisfactory when deciding whether a registered domain name is confusingly similar to a complainant’s mark under Policy ¶ 4(a)(i). See Reed Elsevier Inc. and Reed Elsevier Properties Inc. v. Carlos M. Alvarez d/b/a IT Lexis, FA 98249 (Nat. Arb. Forum Aug. 20, 2001) (holding, “The <itlexis.com> domain name is confusingly similar to Complainant's LEXIS marks in that it incorporates the entire LEXIS mark with the addition of the generic term "it" which is a well-known acronym for intellectual technology.”); see also Microsoft Corp. v. Zournas, FA 1093928 (Nat. Arb. Forum Dec. 10, 2007) (“the Panel finds that Respondent’s <windows.info> domain name is identical to Complainant’s WINDOWS mark as the addition of a gTLD is a necessary addition in the creation of any domain name and therefore an indistinguishing characteristic under Policy ¶ 4(a)(i).“). Therefore, as the addition of “hr” seems to be a generic term/acronym which likely stands for “human resources” and the addition of the “.info” gTLD is seen as irrelevant to its analysis, the Panel decides that the <infineonhr.info> domain name is confusingly similar to the INFINEON mark per Policy ¶ 4(a)(i).
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.”).
Complainant posits that Respondent has no rights or legitimate interests in the disputed domain name. Complainant asserts that Respondent is not commonly known by the <infineonhr.info> domain name. In determining Respondent’s rights under Policy ¶ 4(c)(ii), panels have viewed evidence in the record such as WHOIS information and any arguments from a respondent which would substantiate a finding of respondent as “commonly known by” a disputed domain name. As Respondent here has failed to make any arguments whatsoever, the Panel utilizes the relevant WHOIS information, which lists the registrant of record for the <infineonhr.info> domain name as “mustafa mashari” as an indication that there is no basis in finding Respondent has rights under Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Further, Complainant argues that no bona fide offering of goods or services or any legitimate noncommercial or fair use has been evidenced dating back to the domain’s registration as it previously resolved to a “parked page” and currently bears no content. See Compl., at Attached Ex. F (screenshot of <infineonhr.info> at what appears to be a GoDaddy parking page). Panels have found a respondent’s designation of a disputed domain name to a parking website, presumably for commercial gain, constitutes no bona fide offering of goods or services or any legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Charles Letts & Co Ltd. v. Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding that the respondent’s parking of a domain name containing the complainant’s mark for the respondent’s commercial gain did not satisfy Policy ¶ 4(c)(i) or ¶ 4(c)(iii)). Therefore, this Panel agrees that Respondent’s initial designation of the disputed domain name as a parking page evidences no rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii).
Complainant claims that currently Respondent’s website resolves to a page with no content. See Compl., at Attached Ex. G (resolving page stating, “Network Error (dnx s_unresolved_hostname)”). Panels have found failure to make an active use of a disputed domain name evinces no rights under Policy ¶ 4(a)(ii). See TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [failure to make an active use] of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”). Therefore, this Panel agrees that, as Respondent has failed to use the website, or make any demonstrable preparations to use the <infineonhr.info> domain name, it may find no rights per Policy ¶ 4(a)(ii).
Further, Complainant contends that Respondent has used the domain name in connection with a fraudulent scheme to “phish” for Internet users’ personal information via emails where it attempts to pass itself off as a representative of Complainant’s human resources department interested in hiring new employees in connection with the hr@infineonhr.info address. The Panel notes that Complainant has provided a copy of an email sent using the <infineonhr.info> domain name in an email string in furtherance of fraudulent activity. See Compl., at Attached Ex. H; see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use). The Panel agrees that Respondent’s use of the <infineonhr.info> domain name in an effort to phish for personal information in fraudulent emails for commercial gain further evinces Respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).
Respondent has allegedly attempted to fraudulently gather Internet users’ personal information in a phishing scheme, and to redirect them to <lmxsoft.net> to induce them to download software, an activity from which Respondent presumably profited while passing itself off as a human resources representative of Complainant’s company. Complainant has included information on such schemes at Exhibit I. Such use is seen by this Panel to evince Respondent’s attraction for commercial gain under Policy ¶ 4(b)(iv) as Respondent has attempted to profit from Internet user confusion as to the source, sponsorship, affiliation, and/or endorsement of Respondent or its domain and/or location. See Compl., at Attached Ex. H; see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”).
Complainant argues that Respondent registered the disputed domain name with actual or constructive knowledge of the INFINEON mark. Complainant argues that Respondent’s attempt to phish via fraudulent emails indicates that Respondent knew of Complainant’s INFINEON mark and its rights thereof, as demonstrated by Exhibit H. See SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA 1581255 (Nat. Arb. Forum Oct. 29, 2014) (“Respondent’s knowledge of Complainant’s mark is apparent by Respondent’s attempt to project itself as Complainant.”). The Panel finds that Respondent’s behavior here indicates that it had actual knowledge of Complainant’s rights in the INFINEON mark, constituting bad faith registration per 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 <infineonhr.info> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: June 27, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page