Textron Innovations Inc. v. Bradley Smith / Smith llcs
Claim Number: FA1612001706767
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick of Pastrick Law LLC, Indiana, USA. Respondent is Bradley Smith / Smith llcs (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kluake-textron.com>, registered with 1&1 Internet SE.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 9, 2016; the Forum received payment on December 9, 2016.
On December 12, 2016, 1&1 Internet SE confirmed by e-mail to the Forum that the <kluake-textron.com> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 December 13, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2017 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@kluake-textron.com. Also on December 13, 2016, 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 January 12, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Textron Innovations, Inc., is a multi-industry company that serves a diverse and global customer base. Both Complainant and Klauke Textron are affiliates of the same company, Textron, Inc. Complainant has rights in the TEXTRON mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,090,704, registered May 9, 1978). See Compl., at Attached Ex. 3. Respondent’s <kluake-textron.com> is confusingly similar to Complainant’s TEXTRON mark, as it contains the mark in its entirety, merely adding the term “kluake,” a hyphen, and the generic top-level domain (“gTLD”) “.com.” This similarity is enhanced, as the term “kluake” is clearly related to Complainant’s affiliated company Klauke Textron, which uses the <Textron.com> domain for its email address, such that the legitimate Klauke Textron email extension is <@Klauke.textron.com>.
Respondent has no rights or legitimate interests in the domain name. Respondent is not commonly known by the disputed domain, nor has Complainant authorized Respondent to use the TEXTRON mark in any way. Respondent has not used, nor made any demonstrable preparation to use, the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the disputed domain does not resolve to an active page (see Compl., at Attached Ex. 6), and email addresses associated with the disputed domain have been utilized as part of a phishing scam in which parties attempting to pass off as employees of Complainant attempt to elicit personal and financial information and steal money from parties with whom Complainant has business relationships. See Compl., at Attached Ex. 5.
Respondent registered and is using the disputed domain in bad faith under the Policy. Respondent is using <kluake-textron.com> to host an email extension which it uses to pass off as Complainant and disrupt Complainant’s business by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the emails. Such conduct is proscribed as bad faith under Policy ¶¶ 4(b)(iii) and 4(b)(iv). Additionally, from the readily available evidence, it is clear Respondent had actual knowledge of Complainant’s rights in the TEXTRON mark at the time it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain was created October 7, 2016.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has not rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 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 (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.”).
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark. Complainant has adequately pled it rights and interests in the mark TEXTRON. Respondent arrives at the dispute domain name, <kluake-textron.com>, by appending the further trademark of Complainant’s parent company, “Kluake”, to the trademark itself and adding the g TLD “.com.” This is insufficient to distinguish the disputed domain name from the registered trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the TEXTRON mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (FORUM July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “Bradley Smith” with “Smith llcs.” See Compl., at Attached Ex. 1. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name.
In addition, Respondent appears to not use the name for a bona fide offering of goods or services or legitimate noncommercial or fair use. Failure to make active use of a disputed domain can be evidence of a respondent’s lack of rights or legitimate interests in the domain. See Thermo Electron Corp. v. Xu, FA 713851 (FORUM July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Respondent’s <kluake-textron.com> does not resolve to an active page. See Compl., at Attached Ex. 6. Therefore, the Panel finds Respondent is not using the disputed domain name for a permissible use under Policy ¶¶ 4(c)(i) or 4(c)(iii).
Complainant also contends the disputed domain name hosts email addresses which are being utilized as part of a phishing scam. Use of a disputed domain name to pass off as a complainant and obtain sensitive personal or financial information does not amount to a legitimate noncommercial or fair use under Policy 4(c)(iii). See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (FORUM Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”). Emails sent from addresses utilizing the <kluake-textron.com> domain have impersonated Klauke Textron employees in an attempt to elicit personal/financial information and to apparently steal money from parties with whom Complainant does business. See Compl., at Attached Ex. 5.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant contends that Respondent’s registration and use of <kluake-textron.com> evinces bad faith pursuant to Policy ¶¶ 4(b)(iii) and 4(b)(iv) because the domain is being used to provide an email extension which Respondent uses to pass off as employees of companies affiliated with Complainant and disrupt Complainant’s business with its phishing attempts. Phishing can be evidence of a Policy ¶ 4(b)(iii) violation. See SPTC, Inc. and SPTC Delaware, LLC v. Robert Seid / Chicago Title Trust, FA 1608982 (FORUM Apr. 20, 2015) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers). The email addresses hosted at the disputed domain name were sent to Complainant’s business partners. See Compl., at Attached Ex. 5. Additionally, use of a confusingly similar domain name to pass off as a complainant to capitalize on consumer confusion can be evidence of Policy ¶ 4(b)(iv) bad faith. See Perot Sys. Corp. v. Perot.net, FA 95312 (FORUM Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). The emails sent from <kluake-textron.com>, in addition to containing the confusingly similar domain, purport to be from Klauke Textron employees. See Compl., at Attached Ex. 5. The Panel finds, therefore, that Respondent registered and is using the disputed domain in bad faith pursuant to Policy ¶¶ 4(b)(iii) and/or 4(b)(iv).
Complainant also contends that in light of the fame and notoriety of Complainant's TEXTRON mark and the visually similarity of the disputed domain to Klauke Textron’s legitimate <@Klauke.textron.com> email server, it is inconceivable that Respondent could have registered the <kluake-textron.com> domain name without actual knowledge of Complainant's rights in the mark. The Panel finds that, given the totality of the circumstances, Respondent is not likely to have inadvertently derived the disputed domain name without actual knowledge of Complainant’s prior rights and interests in and to the trademark.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <kluake-textron.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: January 12, 2017
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