Duke Energy Corporation v. Jackie Mccolloch
Claim Number: FA1609001692087
Complainant is Duke Energy Corporation (“Complainant”), represented by Michael Tobin of Womble Carlyle Sandridge & Rice, LLP, North Carolina, USA. Respondent is Jackie Mccolloch (“Respondent”), Wyoming, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dukeenergy.biz>, registered with eNom, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 1, 2016; the Forum received payment on September 1, 2016.
On September 2, 2016, eNom, Inc. confirmed by e-mail to the Forum that the <dukeenergy.biz> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 September 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 26, 2016 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@dukeenergy.biz. Also on September 6, 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 October 3, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <dukeenergy.biz> domain name is identical to Complainant’s DUKE ENERGY mark.
2. Respondent does not have any rights or legitimate interests in the <dukeenergy.biz> domain name.
3. Respondent registered and uses the <dukeenergy.biz> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds a registration for the DUKE ENERGY mark with the United States Patent and Trademark Office “USPTO” (Reg. No. 2,316,855, registered Feb. 8, 2000).
Respondent registered the <dukeenergy.biz> domain name on June 14, 2016, and has not submitted a Response to this Complaint, and uses it for a phishing scheme.
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 Complainant has rights in the DUKE ENERGY mark based on its registration with the USPTO. Panels routinely find that registration of a mark with the USPTO confers rights in the mark under Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Respondent’s <dukeenergy.biz> domain name is identical to the DUKE ENERGY mark; the addition of the gTLD “.biz” and does nothing to distinguish the domain name from the mark. Panels have held that the removal of a space within a mark and the addition of a gTLD do not render a disputed domain name distinctive. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”); see also Tech. Props., Inc. v. Burris, FA 94424 (Forum May 9, 2000) (finding that the domain name <radioshack.net> is identical to the complainant’s mark, RADIO SHACK). The Panel finds that the <dukeenergy.biz> domain name is identical to Complainant’s DUKE ENERGY mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 (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 (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 contends that Respondent has no rights or legitimate interests in the <dukeenergy.biz> domain name. Complainant asserts that it has not licensed or otherwise authorized Respondent to use its DUKE ENERGY mark, and that Respondent is not commonly known by the disputed domain name. The WHOIS information for the disputed domain name lists “Jackie Mccolloch” as the registrant. The Panel agrees that Respondent is not commonly known by the <dukeenergy.biz> domain name under Policy ¶ 4(c)(ii). 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).
Complainant further asserts that Respondent is not using the disputed domain name to make a bona fide offering of goods and services under Policy ¶ 4(c)(i), or using it to make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Complainant contends that Respondent is using the disputed domain name as part of an email phishing scheme where Respondent passes itself off as Complainant. Complainant alleges that Respondent is using the <dukeenergy.biz> domain name to produce <jobs@dukeenergy.biz> and <careers@dukeenergy.biz> email addresses in order to fraudulently solicit Internet users’ personal information. The Panel notes emails where Respondent fraudulently states it is a “Senior HR Manager” at Complainant’s company, and others that solicit sensitive personal information. The Panel finds that Respondent’s use of the disputed domain name for a phishing scheme is not a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA 1550388 (Forum May 5, 2014), where the panel found that the respondent lacked rights and legitimate interests in the disputed domain name where the respondent used the domain name to send e-mails to various IT hardware suppliers in an attempt to impersonate the complainant and defraud the suppliers.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent has registered and is using the <dukeenergy.biz> domain name in bad faith. Complainant argues that Respondent is using this identical domain name to create confusion as to the source, sponsorship, affiliation, or endorsement with Complainant’s DUKE ENERGY mark in an attempt to achieve commercial gain through a fraudulent phishing scheme. The Panel agrees and finds that Respondent’s use of the disputed domain name is bad faith under Policy ¶ 4(b)(iv). See PineBridge Investments IP Holdings Limited v. uche victor, FA 1551301 (Forum May 6, 2014) (“Respondent is trying to confuse Internet users into believing that Respondent is in fact the CEO of Complainant’s business, when it is not. The Panel finds that using a disputed domain name to attract Internet users to a website by confusing them as to the Complainant’s affiliation with Respondent’s disputed domain name indicates bad faith use and registration under Policy ¶ 4(b)(iv)”); see also Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”).
Complainant also contends that Respondent’s use of the disputed domain name for a phishing scheme constitutes bad faith disruption of Complainant’s business under Policy ¶ 4(a)(iii). Prior panels have agreed that using a domain name as part of an email phishing scheme is bad faith. See Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the disputed domain name to send emails to Internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process). Thus, the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied 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 <dukeenergy.biz> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 9, 2016
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