Agilent Technologies, Inc. v. Donald Bill
Claim Number: FA2211002019048
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, US. Respondent is Donald Bill (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agilentcareers.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on November 4, 2022; Forum received payment on paper file date.
On November 04, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <agilentcareers.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 November 7, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 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@agilentcareers.us. Also on November 7, 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 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 to the usTLD Dispute Resolution Policy (“Rules”). 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 contends as follows:
Complainant, Agilent Technologies, Inc., is a Fortune 500 company offering services in the life sciences and applied chemical markets.
Complainant asserts rights in the AGILENT mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <agilentcareers.us> domain name is confusingly similar to Complainant’s mark because it contains the AGILENT mark in its entirety, merely adding the term “careers” and the country-code top-level domain (“ccTLD”) “.us” to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <agilentcareers.us> domain name. Respondent is not licensed or authorized to use Complainant’s AGILENT mark and is not commonly known by the at-issue domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent previously used the domain name to pass itself off as Complainant and conduct a phishing scheme. Currently, Respondent fails to make active use of the domain name.
Respondent registered or uses the <agilentcareers.us> domain name in bad faith. Respondent previously used the domain name to pass itself off as Complainant and trick users into thinking they were visiting Complainant’s employee recruiting website. Additionally, Respondent used the <agilentcareers.us> domain for phishing activities. Currently, Respondent does not make active use of the resolving website. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the AGILENT mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the AGILENT mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the AGILENT trademark.
Respondent has used the at-issue domain name to address a website mimicking Complainant’s genuine website in furtherance of a phishing scheme and currently holds the domain name passively.
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, 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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its AGILENT trademark. Such registration is sufficient to demonstrate Complainant’s rights in the AGILENT mark under Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
Respondent’s <agilentcareers.us> domain name consists of Complainant’s entire AGILENT trademark followed by the generic term “careers” with all followed by the “.us” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel concludes that Respondent’s <agilentcareers.us> domain name is confusingly similar to AGILENT pursuant to Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also, Lockheed Martin Corp. v. Roberson, FA 323762 (Forum Oct. 19, 2004) (holding that the ccTLD “.us” does not differentiate the disputed domain name from Complainant’s mark).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Donald Bill” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <agilentcareers.us> domain name or by AGILENT. The Panel therefore concludes that Respondent is not commonly known by <agilentcareers.us> for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Respondent has used the at-issue domain name to pass itself off as Complainant in furtherance of a phishing scheme. The <agilentcareers.us> domain name addresses a website displaying Complainant’s trademark, logo, and content lifted from Complainant’s genuine employee recruiting website located at https://careers.aligent.com. Respondent’s website advertises various fraudulent job opportunities with Complainant. Notably, Respondent directs persons interested in a position with Complainant to use the <agilentcareers.us> website to apply for a job. Once an interested candidate responds showing interest via the fraudulent website Respondent then makes requests of the “job applicant” for personal information or for payments in support of potential future employment, or may otherwise deceive the unfortunate victim. Using the at-issue domain name to impersonate Complainant in furtherance of fraud shows neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See, DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
Currently upon browsing to the at-issue domain name an error message stating that no content can be reached is returned. Respondent thus holds the at-issue domain name passively which is likewise neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without being exhaustive, there are multiple circumstances from which the Panel may conclude that Respondent acted in bad faith under Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and legitimate interest, Respondent has used the at-issue domain name to pass itself off as Complainant in furtherance of a phishing scheme whereby third-parties interested in working for Complainant were deceived into believing they were visiting Complainant’s recruiting website. Respondent then exploited such parties’ confidence for its own benefit. Respondent’s conduct is indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also, Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (concluding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use).
Additionally and as also mentioned regarding rights and legitimate interests, Respondent currently holds the at-issue domain name passively. Failing to make active use of <agilentcareers.us> is further evidence of bad faith under Policy ¶ 4(a)(iii). See State Farm Mutual Automobile Insurance Company v. Dr. Keenan Cofield, FA 1799574 (Forum Sep. 10, 2018) (finding bad faith under Policy ¶ 4(a)(iii) where “the domain name initially resolved to a web page with a “website coming soon” message, and now resolves to an error page with no content.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the AGILENT mark when it registered <agilentcareers.us> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of <agilentcareers.us> to impersonate Complainant and defraud third-parties as discussed elsewhere herein. Respondent’s prior knowledge further indicates Respondent’s bad faith registration and use of <agilentcareers.us> pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agilentcareers.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 2, 2022
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