Havtech Group, LLC v. Christopher Tait
Claim Number: FA2212002025420
Complainant is Havtech Group, LLC (“Complainant”), represented by Laura J. Winston of Offit Kurman, P.A., USA. Respondent is Christopher Tait (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <havtech.us>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to Forum electronically on December 27, 2022; Forum received payment on December 27, 2022.
On December 29, 2022, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to Forum that the <havtech.us> domain name (the Domain Name) is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 30, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of January 19, 2023 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@havtech.us. Also on December 30, 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 January 25, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a provider of commercial HVAC equipment, building automation systems, and service and energy solutions. It has common law rights in the HAVTECH mark through its continuous and widespread use of the HAVTECH mark. Respondent’s <havtech.us> Domain Name is identical or confusingly similar to Complainant’s mark because it fully incorporates Complainant’s mark, merely adding the country code top-level domain (“ccTLD”) “.us”.
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not affiliated or associated with Complainant and Complainant has not authorized or licensed Respondent any rights in the HAVTECH mark, Respondent is not commonly known by the Domain Name, and Respondent does not use the Domain Name for any bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead the Domain Name resolves to an inactive webpage. Finally, Respondent uses the Domain Name for an email account which it uses to impersonate Complainant, defraud Complainant’s customers and engage in phishing.
Respondent registered or uses the Domain Name in bad faith. It registered the Domain Name with actual knowledge of Complainant’s rights in the HAVTECH mark, it disrupts Complainant’s business, it attempts for commercial gain to attract Internet users to its website by creating confusion as to the source, sponsorship, affiliation or endorsement of that website by Complainant, is passively holding the Domain Name, and registered it having no connection with Complainant.
Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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 . Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
Identical and/or Confusingly Similar
On July 10, 2022 Complainant applied for registration of its HAVTECH mark with the United States Patent and Trademark Office (USPTO), claiming first use in November 1983 (TSDR printout submitted as Complaint Annex C). It is well-settled that an application for registration of a mark with the USPTO is, in and of itself, insufficient to establish rights in that mark for the purposes of Policy ¶ 4(a)(i). Imagine Nation Books Ltd. V LEE, LAWRENCE, FA 1662128 (Forum Mar. 31, 2016) (“Complainant’s only assertion of rights in the mark stem from a trademark application and the statement that Complainant offers ‘services and goods under the name Collective Goods’… [and] pending trademark applications do not establish rights in a mark under Policy ¶ 4(a)(i).”). A trademark registration, however, is not necessary to demonstrate rights under Policy ¶ 4(a)(i), as common law rights can be sufficient if the complainant can establish that the mark has acquired secondary meaning. Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding that “The Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”).
Secondary meaning is proven by showing exclusive use of the mark in commerce for a period of time, evidence of advertising and sales, recognition of the mark by customers, unsolicited media attention, or other evidence showing that the relevant consuming public has come to associate the mark with goods or services provided by a single vendor. Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum July 17, 2015) (holding, “Complainant has provided evidence of secondary meaning by providing evidence of length of use in the mark; evidence of holding an identical domain name; media recognition; and promotional material/advertising (including letterhead and business cards.”), Gourmet Depot v. DI S.A., FA 1378760 (Forum June 21, 2011) (“Relevant evidence of secondary meaning includes length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition.”). The WIPO Overview 3.0 at ¶ 1.3 lists a number of factors that support a claim of common law trademark rights, including “(i) the nature and duration of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys.”
In support of its claim of common law rights Complainant alleges that it has been in business since 1983 and has become a leading engineered building systems and services provider throughout the Mid-Atlantic region. It alleges that its name has become a valuable asset as a result of considerable sums of money spent promoting the services associated with the HAVTECH mark, and that through the mark’s association with Complainant and longstanding continuous use, the mark has acquired secondary meaning as it identifies Complainant. It offered no evidence from independent sources such as media attention, customer statements, examples of its advertising used in prior years, copies of correspondence or bank statements showing continuous use of the HAVTECH mark over the years, or any other independent evidence of prior continuous use. It did submit screenshots of pages from its website currently in use, located at <havtech.com>, which refer to its having commenced its business in 1983 and show photos of a substantial number of buildings which have utilized its services. The number and scope of these projects support Complainant’s claims to have operated under the HAVTECH mark for a substantial period of time. While there is no evidence as to when Complainant’s <havtech.com> domain name was registered, the fact that Complainant currently uses it and maintains a website at that location supports its claim of common law rights in the HAVTECH mark. Further, while the USPTO application is not sufficient on its own to establish rights in the mark for the purposes of Policy ¶ 4(a)(i), it does corroborate and support Complainant’s allegations. While Complainant offered no documentary evidence demonstrating recognition of the mark by consumers, the amount of sales claimed, or media attention, its allegations on these points are not disputed by Respondent or challenged by any other evidence in the record. On balance, while the evidence presented is thin at best, the Panel is persuaded that Complainant has sufficient common law rights in the HAVTECH mark to satisfy the requirements of Policy ¶ 4(a)(i).
Respondent’s <havtech.us> Domain Name is identical or confusingly similar to Complainant’s HAVTECH mark. It incorporates the mark verbatim, merely adding the “.us” ccTLD. This change does not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). See CloudFlare, Inc. v. [Registrant], FA 1624251 (Forum Aug. 1, 2015) (holding, “The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i).”). ). The WIPO Overview 3.0 at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the HAVTECH mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following four nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) The respondent is the owner or beneficiary of a trade or service mark that is identical to the domain name;
(ii) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(iii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iv) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant states that Respondent has no legitimate interests in the Domain Name because (i) Respondent is not affiliated or associated with Complainant and Complainant has not authorized or licensed Respondent any rights in the HAVTECH mark, (ii) Respondent is not commonly known by the Domain Name, (iii) Respondent does not use the Domain Name for any bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead the Domain Name resolves to an inactive webpage, and (iv) Respondent uses the Domain Name for an email account which it uses to impersonate Complainant, defraud Complainant’s customers and engage in phishing. These allegations are addressed as follows:
Complainant did not address or offer any evidence bearing specifically upon the Policy ¶ 4(c)(i) factor, concerning whether the Respondent is the owner or beneficiary of a trade or service mark that is identical to the Domain Name. Complainants in usTLD cases can search one or more governmental trademark authorities and report negative results to establish a prima facie case as to Policy ¶ 4(c)(i). Complainant here offered no such evidence. Nevertheless, while it would have been preferable for Complainant to have offered evidence bearing specifically upon this element, the evidence that is available is sufficient to establish that Respondent is not the owner or beneficiary of a trade or service mark identical to the Domain Name. The TSDR printout demonstrating Complainant’s USPTO application (Complaint Annex C) evidences its potential rights in that mark dating from at least as early as the 1983 first use date shown on that printout. Inasmuch as the USPTO is fully aware of Complainant’s claim of rights in the HVATECH mark, it is extremely unlikely that it would register a trademark identical to <havtech.us> or any other mark identical or similar to the Domain Name in the name of any person other than Complainant or one of its affiliates, or that Respondent could be the owner or beneficiary of a valid common law trade or service mark identical to the Domain Name. On this evidence, and in the absence of any evidence to the contrary, the Panel finds that Respondent is not the owner or beneficiary of a valid trade or service mark identical to the Domain Name.
Complainant states that Respondent has no connection or affiliation with it and that it has never authorized or permitted Respondent to use its mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”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 printout submitted as Complaint Annex D and the information furnished to the FORUM by the registrar list “Christopher Tait” as the registrant of the Domain Name. This name bears no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same), 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). The Panel is satisfied that Respondent has not been commonly known by the Domain Name for the purposes of Policy ¶ 4(c)(iii).
Complaint Annexes F, G and H consist of copies of three email communications from persons writing from the addresses accounts.receivable@havtech.us and cbarger@havtech.us addressed to customers of Complainant. Two of these emails contain attached letters from banks purporting to provide routing numbers for the bank and account numbers for Complainant’s account at that bank. All three emails state that Complainant has changed its banking relationship and instructs the recipient to remit future payment for Complainant invoices to the new banks and bank accounts. None of these emails was sent by Complainant. Complainant states that one Catherine Barger is in fact an accounts receivable specialist employed by Complainant. These emails also contain Complainant’s logo and the printed name and title of “Catherine Barger.” Respondent is thus using the Domain Name for an email address which it uses in an attempt to defraud Complainant and its customers of money due from the customers to Complainant. Using a domain name to gain commercially through a fraudulent email scam is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iv). Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“Passing off as a complainant through e-mails is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii).”), Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”), Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (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).[i]
Complainant alleges that the above-described conduct is phishing. Phishing is a fraudulent attempt to obtain sensitive information such as usernames, passwords and credit card details by disguising oneself as a trustworthy entity in an electronic communication. On the facts presented here there is no evidence that Respondent is soliciting sensitive, personal information. Fraud is proven but phishing is not.
Complainant also argues that Respondent is making no active use of the Domain Name. In support it offers Complaint Annex E, which is a screenshot of the website resolving from the Domain Name. The site offers no substantive content whatever, only the words “Index of” and “cgi-bin.” Respondent is making no use of the Domain Name for an active website, but, as described above, it is actively using the Domain Name for an email address. Complainant’s argument for a finding of passive holding is rejected.
Based upon the evidence first discussed above, however, Complainant has established the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration or use . As discussed above, Respondent registered and uses the Domain Name in connection with an email scheme designed to impersonate Complainant and fraudulently divert to Respondent invoice remittances due to Complainant. This conduct may not fall precisely within any of the circumstances described Policy ¶ 4(b), but that paragraph acknowledges that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and using a confusingly similar domain name to perpetrate fraud is manifest evidence of bad faith registration and use. Hewlett-Packard Development Company, L.P. v. Hyatt, FA1811001818756 (Forum Dec. 28, 2018) (“using a domain name to pose as a complainant to promote a fraudulent scheme has often been held to constitute bad faith”) (citations omitted), 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 alleges that Respondent’s conduct fits within the circumstances described in Policy ¶ 4(b)(iii). That paragraph reads as follows: “you [the respondent] have registered the domain name primarily for the purposes of disrupting the business of a competitor” (emphasis supplied). The concept of “competition” in the context of Policy ¶ 4(b)(iii) has been subject to various interpretations by UDRP panels. Some have interpreted that term broadly to mean someone who “acts in opposition to the complainant.” Mission KwaSizabantu v. Benjamin Rost, Case No. 2000-0279 (WIPO June 7, 2000). Others have limited the term to parties who vie commercially with each other in the same industry, offering the same or similar goods or services. Tribeca Film Center Inc. v. Lorenzo Brusasco-Mackenzie, Case No. 2000-1772 (WIPO April 10, 2000). This Panel favors the second view, concurring with the panel in Britannia Building Society v. Britannia Fraud Prevention, Case No. 2001-0505 (WIPO July 8, 2001) that to accept the interpretation first above described would “render so many parties ‘competitors’ as to dilute the Policy’s bad faith requirement beyond recognition.” Clearly, Respondent here is not vying with Complainant for customers in the HVAC industry, offering its own wares as alternatives to those offered by Complainant. It is impersonating Complainant with fraudulent emails but is not competing with it. In the absence of actual commercial competition between Complainant and Respondent, Respondent here cannot be considered a competitor for the purposes of Policy ¶ 4(b)(iii).
Even if Complainant and Respondent were deemed competitors, it does not appear that Respondent registered the Domain Name primarily for the purpose of disrupting Complainant’s business. On the contrary, the evidence is fairly clear that Respondent’s primary purpose in registering the Domain Name was not to disrupt the business of a commercial adversary but instead to use the Domain Name for an email account with which to defraud Complainant and its customers. Respondent’s conduct does not fall within the circumstances stated in Policy ¶ 4(b)(iii).
That said, using a confusingly similar domain name for fraudulent emails under the circumstances described above would naturally cause serious disruption to Complainant’s business and is still bad faith. Given the non-exclusive nature of Policy ¶ 4(b), using a confusingly similar domain name to disrupt the business of a complainant by passing off as and impersonating that complainant is sufficient evidence of bad faith to meet the requirements of Policy ¶ 4(a)(iii). Respondent’s primary intent in registering and continuing to use the Domain Name is less important than the effect of its conduct. Respondent knew or should have known the disruptive impact its conduct would have upon Complainant’s business. Respondent went forward with its plans in spite of that and this demonstrates bad faith independently of Policy ¶ 4(b)(iii). Red Wing Shoe Company, Inc. v. wei zhang / Magdalena Jennifer / Mu Yan / Carolina Rodrigues / Fundacion Comercio Electronico, FA1911001873163 (FORUM January 3, 2020).
Next, Respondent registered and is using the Domain Name, which is confusingly similar to the HAVTECH mark. As discussed above, Respondent has no connection with that mark or its owner, the Complainant. Again, in light of the non-exclusive nature of Policy ¶ 4(b) the use of a domain name that is confusingly similar to a trademark with which the respondent has no connection is evidence of opportunistic bad faith. Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (“[T]he fact that Respondent chosen [sic] to register a well-known mark to which [it] has no connections or rights indicates that [it] was in bad faith when registering the domain name at issue.”), Google LLC v. Noboru Maruyama / Personal, FA 2001001879162 (FORUM March 3, 2020) (“the registration and use of domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of bad faith.”).
Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name. Complainant’s HAVTECH mark had been used by it for more than forty years by that time (first use date is shown in TSDR printout submitted as Complaint Annex C). It is a coined term having no inherent meaning and would not normally be selected for use in a domain name except for the purpose of targeting Complainant, yet Respondent copied it exactly into the Domain Name. More importantly, Respondent was sufficiently acquainted with Complainant to use the name of its accounts receivable specialist in its fraudulent emails. Again, considering the nonexclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in the incorporated mark has often been held to be evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). 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).
For the reasons first set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <havtech.us> Domain Name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
January 27, 2023
[i] The cases cited in this section were decided under the Uniform Dispute Resolution Policy (UDRP), which does not include usTLD Policy ¶ 4(c)(i). The usTLD Policy ¶¶ 4(c)(ii), (iii) and (iv) are identical to UDRP Policy ¶¶ 4(c)(i)(ii) and (iii).
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