Agilent Technologies, Inc. v. Whois Privacy Protection Foundation / Hosting Concepts BV d/b/a Registrar.eu
Claim Number: FA2210002017933
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, Colorado, USA. Respondent is Whois Privacy Protection Foundation / Hosting Concepts BV d/b/a Registrar.eu (“Respondent”), Netherlands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agislent.com>, registered with OwnRegistrar, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on October 27, 2022; Forum received payment on October 27, 2022.
On October 28, 2022, OwnRegistrar, Inc. confirmed by e-mail to Forum that the <agislent.com> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, 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 November 15, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 5, 2022 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@agislent.com. Also on November 15, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 13, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 provides a wide variety of goods and services in, inter alia, the life sciences, diagnostics, and the laboratory and scientific research industries. Complainant is a Fortune 500 company and world leader in the life sciences, diagnostics, and applied chemical markets. Complainant was formed in 1999 after its predecessor company, Hewlett-Packard, Inc., announced a strategic realignment to create Complainant as an independent measurement company composed of test and measurement components, life sciences and chemical analysis, electronics, and semiconductor and communications products. That “spin-off” of Hewlett-Packard in 1999 received significant media attention because, at the time, the $2.1 billion raised from this initial public offering (“IPO”) was the largest IPO in Silicon Valley history. Complainant currently provides laboratories worldwide with instruments, services, consumables, applications, and expertise and employs over 17,000 people worldwide serving customers in 110 countries, and serving approximately 265,000 laboratories, including major universities, hospitals, and research institutions globally. Complainant, through its domain name and corresponding website <agilent.com>, operates a robust online marketplace where its customers can choose from hundreds of different products which can be shipped to countries all over the world. Complainant’s revenues in 2021 exceeded $6.3 billion. Complainant asserts rights in the AGILENT mark through its registration of the mark in the United States in 2002. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is identical or confusingly similar to its AGILENT mark as it consists of a misspelling of the mark (a letter “s” is added), with the addition of the “.com” generic top-level-domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the resolving website is inactive and Respondent uses the disputed domain name to send fraudulent phishing emails. Specifically, beginning on October 6, 2022—the same day Respondent registered the disputed domain name—Respondent intercepted a legitimate email thread between Complainant and one of Complainant’s customers and sent multiple emails to the customer, impersonating one of Complainant’s employees and requesting payment on multiple outstanding invoices the customer had with Complainant. In this email thread—which continued for several weeks until October 25, 2022—Respondent falsely claimed that it “[j]ust got an update that the wire will be going to our other investment account, will provide the write information shortly,” and instructed the customer to send payments to a new bank account with “Citizens.” To be clear, Complainant does not own any such bank account. Respondent, still falsely claiming to be an employee for Complainant, then attempted to change the payment instructions again, stating that it “[j]ust got an update that today’s payment will be going to our other investment bank information attached,” and provided fraudulent contact information for the customer and its bank to “verify” the account information. Each of these fraudulent correspondences was sent by Respondent from an email address utilizing the disputed domain name. Respondent not only impersonated the name and email address of Complainant’s employee, but it also impersonated that employee’s entire signature block—including the employee’s name, title, and telephone number, as well as Complainant’s website URL and corporate branding. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website is inactive. Respondent uses the disputed domain name to send phishing emails. Respondent engaged in typosquatting. Respondent had actual knowledge of Complainant’s rights in the AGILENT mark prior to registration of the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark AGILENT uses it in connection with a wide variety of goods and services in, inter alia, the life sciences, diagnostics, and the laboratory and scientific research industries.
Complainant’s rights in its mark date back to at least 2002.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website is inactive. Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme; the fraudulent emails display Complainant’s employee’s entire signature block—including the employee’s name, title, and telephone number, as well as Complainant’s website URL and corporate branding.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name consists of a misspelling of Complainant’s AGILENT mark (a letter “s” is added), with the addition of the “.com” generic top-level-domain (“gTLD”). Similar changes in a registered mark have failed sufficiently to distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank’). The Panel therefore finds that that the disputed domain name is confusingly similar to the Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its AGILENT mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Here, the WHOIS information of record identifies the registrant of the disputed domain name as “Whois Privacy Protection Foundation / Hosting Concepts BV d/b/a Registrar.eu.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the disputed domain name.
The resolving website is inactive. Failure to make active use of a confusingly similar domain name can evince a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Respondent uses the disputed domain name in emails in furtherance of a fraudulent email phishing scheme. Specifically, Complainant presents evidence showing that the disputed domain name was used in email addresses to impersonate one of Complainant’s employees and attempt to divert payments from one of Complainant’s customers to Respondent. Phishing attempts evince a lack of any bona fide offering of goods or services or legitimate noncommercial or fair use. See Agilent Techs., Inc. v. Ahmed / My Company, FA 1791549 (Forum Jul. 12, 2018) (“Complainant provide[d] a copy of a redacted email showing a phishing scheme wherein Respondent impersonates Complainant’s employees in an attempt to have customers transfer large sums of money into Respondent’s bank accounts. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).”). The Panel therefore finds, on this ground also, that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
For all the above reasons, 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 uses the disputed domain name to send fraudulent emails to Complainant’s customers in an attempt to divert funds. A phishing scheme through fraudulent email communications can evince bad faith under Policy ¶ 4(a)(iii). See Agilent Techs., Inc. v. Ahmed / My Company, FA 1791549 (Forum Jul. 12, 2018) (“Complainant has provided evidence that Respondent attempted to impersonate Complainant’s employees to induce customers to transfer money to Respondent. The Panel therefore finds that Respondent engages in phishing and this demonstrates further bad faith per Policy ¶ 4(a)(iii).”). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the fraudulent emails display the actual signature block of one of Complainant’s employees. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, by merely adding a letter in Complainant’s mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. Zhichao Yang, FA2110001970133 (Forum Nov. 24, 2021) (“Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a domain name hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or will otherwise confuse the misspelled trademark laden domain name with its target trademark, a web address, an email address, or some other reference to the mark holder.”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use). As such, the Panel finds bad faith typosquatting under 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 <agislent.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 13, 2022
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