Hochtief Aktiengesellschaft v. Richard dinovits
Claim Number: FA2011001923063
Complainant is Hochtief Aktiengesellschaft (“Complainant”), represented by Jens Nebel, Germany. Respondent is Richard dinovits (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hochtief.us>, registered with NameCheap, Inc..
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 27, 2020; the Forum received payment on November 25, 2020.
On November 30, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <hochtief.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On December 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 23, 2020 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@hochtief.us. Also on December 3, 2020, 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 28, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 usTLD Dispute Resolution Policy ("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 usTLD Policy, usTLD 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 has rights in the HOCHTIEF mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 6,185,532, registered October 27, 2020). Respondent’s <hochtief.us> domain name is identical or confusingly similar to Complainant’s HOCHTIEF mark as it contains the HOCHTIEF mark in its entirety and merely adds the “.us” country code top-level domain (“ccTLD”).
Respondent lacks rights or legitimate interests in the <hochtief.us> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use the HOCHTIEF mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain name to pass off as Complainant. Furthermore, Respondent uses the disputed domain name in furtherance of a phishing scheme.
Respondent registered and uses the <hochtief.us> domain name in bad faith. There are reasonable circumstances indicating that Respondent registered the disputed domain name primarily for the purpose of selling the disputed domain name. Additionally, Respondent uses the disputed domain name in furtherance of a phishing scheme.
B. Respondent
Respondent argues that the <hochtief.us> domain name was not registered by the Respondent or Respondent’s employee Mr. Dinovitz. Respondent further argues that it appears that someone took Mr. Dinovitz’s name and Respondent’s corporate address from Respondent’s website and used them to register the domain. Respondent further alleges that the e-mail address and phone number associated with the registrant do not belong to Respondent or Mr. Dinovitz.
The Panel notes that the <hochtief.us> domain name was registered on October 6, 2020.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response refuting any of Complainant’s substantive allegations, 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.”).
Complainant asserts rights in the HOCHTIEF mark through its registration of the mark with the USPTO (e.g. Reg. No. 6,185,532, registered October 27, 2020). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Therefore, the Panel finds that Complainant has demonstrated rights in the HOCHTIEF mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <hochtief.us> domain name is identical or confusingly similar to Complainant’s HOCHTIEF mark as the disputed domain name incorporates Complainant's HOCHTIEF trademark in its entirety and merely adds the “.us” country code top-level domain (“ccTLD”). The addition of a ccTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark under Policy ¶ 4(a)(i), despite the addition of the “.us” ccTLD and the “.com” gTLD). Therefore, the Panel finds the disputed domain name to be confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights or legitimate interests in the <hochtief.us> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use the HOCHTIEF mark. When a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Richard dinovits,” which, according to Respondent, is false information, and Complainant argues there is no other evidence to suggest that Respondent was authorized to use the HOCHTIEF mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(iii).
The Panel further agrees that there is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, this Panel concludes that the domain registrant has failed Policy
¶ 4(c)(i).
Complainant argues that Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use because the domain registrant uses the disputed domain name to pass off as Complainant. Using a confusingly similar domain name to pass off as a complainant in furtherance of a phishing scam may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv). See Emerson Electric Co. v. Adilcon Rocha, FA 1735639 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Here, Complainant argues that domain registrant uses the disputed domain name to offer a verbatim copy of Complainant’s official US website with copyrighted materials without any permission; and does not use the disputed domain name for any offering of its own goods of services. Additionally, Complainant provides screenshots of e-mails in which the email address info@hochtief.us has been given in the contact information of scam job offers. Complainant highlights that the applicants have been asked in these fake job offers to disclose sensitive personal data about themselves such as address, telephone number, social security number, or education background. The Panel therefore finds that the domain registrant fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant contends Respondent registered and uses the <hochtief.us> domain name in bad faith, as there are reasonable circumstances indicating that Respondent registered the disputed domain name primarily for the purpose of selling the disputed domain name. A respondent’s behavior can give rise to an inference that a respondent seeks to sell a disputed domain name. See Euromarket Designs, Inc. v. Domain For Sale VMI, D2000-1195 (WIPO Oct. 26, 2000) (“[T]he manner in which the Respondent chose to identify itself and its administrative and billing contacts both conceals its identity and unmistakably conveys its intention, from the date of the registration, to sell rather than make any use of the disputed domain name.”). Here, Complainant argues that it is probable that the Respondent has the primary intention of reselling the disputed domain name to the Complainant or a competitor for profit, as Respondent uses the disputed domain name to resolve to a website featuring a verbatim copy of Complainant’s official US website. Indeed, Respondent acknowledges that the domain registrant contact information is false. Thus, the Panel finds that the disputed domain name has been registered and used in bad faith per Policy ¶ 4(b)(i).
Finally, Complainant contends that Respondent registered and uses the <hochtief.us> domain name in bad faith as domain registrant uses the disputed domain name in furtherance of a phishing scheme. Using a disputed domain name in furtherance of a phishing scheme can evidence bad faith per Policy ¶ 4(a)(iii). See CoorsTek, Inc. v. Gwendolyn K Bohn / CoorsTek Inc, FA 1764186 (Forum Feb. 2, 2018) (“Respondent sent email to users seeking employment at Complainant’s business and asked for personal information such as a photo ID. Therefore, the Panel finds Respondent’s emails constitute a phishing scheme and this indicates bad faith registration and use per Policy ¶ 4(a)(iii).”). Complainant provides screenshots of e-mails in which the email address info@hochtief.us has been provided in the contact information of scam job offers. Therefore, the Panel finds that disputed domain name has been registered and used in bad faith per Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hochtief.us> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: January 8, 2021
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