KitelyTech, Inc. v. [unknown holder] / Kitelytech
Claim Number: FA2303002038220
Complainant is KitelyTech, Inc. (“Complainant”), represented by Jennifer M. Hetu of Bodman PLC, Michigan, USA. Respondent is [unknown holder] / Kitelytech (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kitellytech.net> (“Domain Name”), registered with Google LLC.
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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to Forum electronically on March 31, 2023; Forum received payment on March 31, 2023.
On March 31, 2023, Google LLC confirmed by e-mail to Forum that the <kitellytech.net> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google LLC 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 April 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 26, 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@kitellytech.net. Also on April 6, 2023, 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 May 3, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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 alleges that the WHOIS information listed for the disputed domain name is false because the named registrant is listed as the Complainant itself and one of its senior executives. Complainant provides uncontested evidence that neither it nor its senior executive registered the Domain Name. Complainant requests the redaction of the named registrant of the Domain Name, as provided for by Paragraph 4(j) of the Policy. Complainant made the request in its Complaint, as required by Forum Supplemental Rule 15(b). Complainant provides evidence of an email message to a third party using the Domain Name, wherein the registrant of the Domain Name impersonates Complainant’s executive. To avoid the association of an adverse UDRP decision with Complainant’s executive, the Panel orders that the named individual Respondent be redacted from the case caption of this Decision (it is not necessary to redact the name “Kitelytech” and this issue is dealt with later in the decision) and replaced with “unknown holder.” See Capital One Financial Corp. v. [Unknown Holder], Case No. FA1607001684338 (Forum Aug. 23, 2016) (“Respondent contends that it has been the victim of identity theft. Specifically, on July 28, the Forum received email communications from Respondent stating that ‘Someone has apparently used my name without my knowledge or permission’... The information supplied in that e-mail communication makes the claim of identity theft plausible, and Complainant does not contest this assertion. Accordingly, this Panel finds that it is in the interests of justice that the identity of the Respondent named in the Complaint be redacted from this decision to protect the identity of that person.”).
All references to “Respondent” in the Findings and Decision below mean and refer to the person who actually registered the Domain Name, who is identified as “[unknown holder] / Kitelytech” in the case caption, and not Complainant’s executive.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant, KitelyTech, Inc., is a full-service technology consulting, design, and development firm. Complainant has rights in the KITELYTECH mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 6,792,306, registered on July 19, 2022). Respondent’s <kitellytech.net> domain name is identical or confusingly similar to Complainant’s KITELYTECH mark as it incorporates a misspelling of the mark (adding an additional letter “l”) and adds the “.net” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <kitellytech.net> domain name. Respondent is not commonly known by the Domain Name, nor has Complainant authorized or licensed Respondent to use its KITELYTECH mark in the Domain Name. Respondent does not use the Domain Name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead uses the Domain Name to create e-mail addresses to pass off as Complainant while engaging in a phishing scheme. Additionally, the Domain Name is currently inactive.
Respondent registered and uses the <kitellytech.net> domain name in bad faith. Respondent is passing itself off as Complainant to engage in a fraud on potential job applicants with Complainant. Respondent registered the Domain Name with actual knowledge of Complainant’s rights in the KITELYTECH Mark given its use as an e-mail address for e-mails where Respondent passes off as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the KITELYTECH mark. The Domain Name is confusingly similar to Complainant’s KITELYTECH mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used the Domain Name in bad faith.
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”).
Complainant has rights in the KITELYTECH mark through its registration with the USPTO (e.g., Reg. No. 6,792,306, registered on July 19, 2022). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel finds that the <kitellytech.net> domain name is confusingly similar to Complainant’s KITELYTECH mark as it wholly incorporates the KITELYTECH mark and then adds the letter “l” to create a minor misspelling and the “.net” gTLD. Adding a gTLD to a minor misspelling of a mark is generally insufficient to create a distinction between a complainant’s mark and a disputed domain name under Policy ¶ 4(a)(i). See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”) ; see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because the domain name syntax requires TLDs.”).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then 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) and 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.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the KITELYTECH mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. 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).
The WHOIS lists “[unknown holder] / Kitelytech” as registrant of record. However, there is no affirmative evidence that the Respondent is actually commonly known under the Kitelytech name as opposed to simply registering the Domain Name under a false name for the purpose of asserting rights or legitimate interests. There is also clear evidence before the Panel, discussed earlier in the decision, that Respondent is falsely using the name of a senior executive of Complainant in its registration details. Even if a respondent appears from the WHOIS record to be known by the domain name, without additional affirmative evidence, it can be concluded that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Google Inc. v. S S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”); see also Hewlett-Packard Co. v. HP Supplies, FA 282387 (Forum July 22, 2004) (“The Panel finds, because of the prominence of the HP mark, that Respondent’s registration under the ‘HP Supplies’ name does not establish that Respondent is commonly known by the <hpsupplies.com> domain name.”). Given the lack of evidence that the Respondent is actually known under a name corresponding to the Domain Name, and Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is inactive which by itself does not show a bona fide offering of goods and services. Complainant alleges, and provides evidence supporting its allegations, that prior to the commencement of the proceeding the Domain Name was used for creating an e-mail address used by Respondent as part of a scheme where Respondent would pass off as Complainant online and advertise fake employment opportunities with Complainant. Respondent would then send e-mails to potential candidates using an e-mail address created through the Domain Name, through which Respondent would request that the candidate provide a variety of personal and other information to the Respondent. Such conduct is best characterized as “phishing”. Respondent’s use of the Domain Name to impersonate Complainant for the purpose of engaging in a phishing scheme to acquire personal information is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”); see also Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum Mar. 7, 2018) (“Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that at the time Respondent registered the Domain Name, February 21, 2023, Respondent had actual knowledge of Complainant’s KITELYTECH mark. It would be implausible for an entity to register the domain name and purport to offer job opportunities with the Complainant absent knowledge of Complainant and its reputation in the KITELYTECH mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith as Respondent uses or has used the Domain Name to impersonate Complainant (and indeed named senior executives of Complainant) in furtherance of a phishing scheme. Use of a disputed domain name to impersonate a complainant in furtherance of a phishing scheme is evidence of bad faith per Policy ¶ 4(a)(iii). See 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)). Accordingly, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to 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 <kitellytech.net> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: May 4, 2023
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