Alliant Energy Corporation v. joey schumer
Claim Number: FA1811001815590
Complainant is Alliant Energy Corporation (“Complainant”), represented by Thomas L. Holt of Perkins Coie LLP, Illinois, USA. Respondent is joey schumer (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alliantenergycorporateservices.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 November 8, 2018; the Forum received payment on November 8, 2018.
On November 9, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <alliantenergycorporateservices.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 November 12, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 3, 2018 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@alliantenergycorporateservices.com. Also on November 12, 2018, 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 December 4, 2018, 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 public utility holding company that offers energy solutions and exceptional services to its customers. Complainant serves approximately 950,000 electric and 410,000 natural gas customers throughout Iowa and Wisconsin. Complainant has rights in the ALLIANT ENERGY mark through its trademark registration in the United States in 2006.
Complainant alleges that the disputed domain name is confusingly similar to its ALLIANT ENERGY mark as it includes the mark and merely adds the descriptive terms “corporate,” “services,” and a “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not authorized or licensed to use Complainant’s ALLIANT ENERGY mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to send e-mails that impersonate a member of Complainant’s staff to order products fraudulently from third-party vendors.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to impersonate a member of Complainant’s staff to send fraudulent product orders. Furthermore, Respondent had actual and/or constructive knowledge of Complainant’s rights in the ALLIANT ENERGY mark prior to registering and subsequent use of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark ALLIANT ENERGY dating back to 2006.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent has used the disputed domain name to send a fraudulent e-mail impersonating a member of Complainant’s staff.
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 disputed domain name is confusingly similar to Complainant’s ALLIANT ENERGY mark, as the name incorporates the mark in its entirety, and merely adds descriptive terms “corporate,” “services,” and a “.com” generic gTLD. Adding descriptive terms and a gTLD to a complainant’s mark may not be sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Starbucks Corporation d/b/a Starbucks Coffee Company v. Waseem A Ali / Micron Web Services, FA 1785616 (Forum June 8, 2018) (finding the <starbucksreal.com> domain name to be confusingly similar to the STARBUCKS mark, as “the addition of the generic term ‘real’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.”); see also NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732459 (Forum June 30, 2017) (“Further, the addition of “com” is particularly unhelpful in creating a distinction between a domain name and a mark.”). The Panel therefore finds that the <alliantenergycorporateservices.com> domain name is confusingly similar to Complainant’s ALLIANT ENERGY mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its ALLIANT ENERGY mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant of the disputed domain name as “joey schumer.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Furthermore, Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent used the disputed domain names in an e-mail to pass off as Complainant in order to confuse Complainant’s vendors into filling out fake order forms and compete with Complainant. Panels have held that a respondent’s use of a domain to impersonate a complainant’s executive does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green, FA 1661030 (Forum Apr. 4, 2016) (finding Respondent’s use of <microsoftcorps.com> to impersonate an executive of Complainant was not within the uses allowable under Policy ¶ 4(c)(i) and 4(c)(iii)). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. 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 used the disputed domain name impersonate a member of Complainant’s staff and to send fraudulent orders. Past panels have determined that the use of a domain by a respondent to impersonate a complainant’s executive constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Microsoft Corporation v. Terrence Green, 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)); Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Forum Oct. 6, 2015) (finding that Respondent’s use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii); Brownell Travel, Inc. v. Troy Haas, FA 1589137 (Forum Dec. 20, 2014) (finding the use of the domain name to send emails impersonating the CEO to the Complainant’s Account Manager to attempt to commit fraud on the Complainant constituted bad faith registration and use under Policy ¶ 4(b)(iii)); The Hackett Group, Inc. v. Brian Herns/The Hackett Group, FA 1597465 (Forum Feb. 6, 2015) (finding that the use of emails associated with the domain name to send fraudulent emails contains the requisite competitive nature under Policy ¶ 4(b)(iii) and this is evidence of bad faith disruption); National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (“We are persuaded by the evidence that Respondent’s use of the <nov-inc.com> domain name to commit a commercial fraud while purporting to act in the name of the Complainant, all as alleged in the Complaint, demonstrates bad faith in the registration and use of the domain name”). Accordingly, the Panel finds that Respondent registered and is using the disputed domain in bad faith pursuant to Policy ¶ 4(b)(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 <alliantenergycorporateservices.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 4, 2018
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