Agilent Technologies, Inc. v. du qiang qiang
Claim Number: FA2304002039579
Complainant is Agilent Technologies, Inc. (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, California, USA. Respondent is du qiang qiang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agilent1200.com>, registered with Gname 023 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 April 11, 2023; Forum received payment on April 11, 2023.
On April 13, 2023, Gname 023 Inc confirmed by e-mail to Forum that the <agilent1200.com> domain name is registered with Gname 023 Inc and that Respondent is the current registrant of the name. Gname 023 Inc has verified that Respondent is bound by the Gname 023 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 April 14, 2023, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of May 4, 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@agilent1200.com. Also on April 14, 2023, the Chinese and English 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 10, 2023, 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 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Notwithstanding that the Registration Agreement is written in Chinese, pursuant to UDRP Rule 11(a) the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case including Respondent’s failure to respond, the Panel finds that the proceeding should be in English.
A. Complainant
Complainant contends as follows:
Complainant, Agilent Technologies, Inc., operates as a world leader in the life sciences, diagnostics, and applied chemical markets.
Complainant claims rights in the well-known AGILENT mark through its registration with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <agilent1200.com> domain name is identical or confusingly similar to Complainant’s AGILENT mark, as it wholly incorporates the mark, and merely adds the term “1200” and the generic top-level domain (“gTLD”) “.com” to form the domain name.
Respondent lacks rights or legitimate interests in the <agilent1200.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed any rights in the AGILENT mark to Respondent. Respondent does not use the domain name in connection with any bona fide offering of goods or services, nor a legitimate non-commercial or fair use. Rather, Respondent uses the at-issue domain name to attract users to its own webpage where it displays advertisements and pay-per-click links. Further, Respondent appears to be using the domain name in the furtherance of malware distribution.
Respondent registered and uses the <agilent1200.com> domain name in bad faith. First, Respondent has demonstrated a pattern of bad faith registration. Also, Respondent uses the at-issue domain name’s resolving website to display advertisements and sponsored links. Respondent also uses the at-issue domain name in furtherance of malware distribution. Finally, Respondent registered the <agilent1200.com> 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 uses the at-issue domain name to address a website displaying gambling related advertising as well as pay-per-click links and also uses the domain name in furtherance of a malware distribution.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration along with multiple other national trademark registrations for its AGILENT trademark. Any of such registrations is sufficient to demonstrate Complainant’s rights in the AGILENT mark under Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
Respondent’s <agilent1200.com> domain name consists of Complainant’s trademark followed by the suggestive number “1200” with all followed by the “.com” 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 <agilent1200.com> domain name is confusingly similar to AGILENT pursuant to Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”).
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 “du qiang qiang” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <agilent1200.com> domain name. The Panel therefore concludes that Respondent is not commonly known by <agilent1200.com> 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 at-issue 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’s at-issue domain name is used to address a website displaying multiple advertisements associated with gambling and includes links so that site visitors can be redirected to additional commercial services or scams. Additionally, the website associated with the domain name has been flagged as suspicious of containing ransomware or other malware. Respondent’s use of the at-issue domain name 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 The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also, Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”).
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).
As discussed below without being exhaustive, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Complainant shows that Respondent has a history of domain name abuse including the registration of numerous other domain names based on well-known brands as well as suffering multiple adverse UDRP decisions that resulted in the subject domain names being transferred away from Respondent. Respondent thus exhibits a pattern of bad faith domain name registration that is indicative of Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
Next, and as mentioned above regarding rights and legitimate interests, Respondent uses the at-issue domain name to direct internet users to a website displaying advertising associated with gambling and multiple other pay-per-click links. Such use of the domain name is disruptive to Complainant’s business and capitalizes on the confusion that Respondent created between the domain name and Complainant’s trademark. Respondent’s use of <agilent1200.com> in this manner shows Respondent’s bad faith registration and use of <agilent1200.com> pursuant to Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See State Farm Mut. Auto. Insur. Co. v. Prot. Domain, FA 1886554 (Forum Mar. 28, 2020) (use of “domain name to host click-through links … is indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv).”); see also, Lee Enters., Inc. v. Polanski, FA 135619 (Forum Jan. 22, 2003) (“Respondent is engaged in linking the disputed domain name to advertisements for gambling websites. A finding for bad faith can be made under Policy ¶ 4(b)(iv) when one intentionally misdirects Internet traffic to either gambling pop-up advertisements or gambling websites.”); see also, Dell Inc. v. gaosun liu / liugaosun, FA 1951189 (Forum July 14, 2021) (finding bad faith where respondent used the domain name at issue “for a Chinese-language website composed of gambling-related advertisements and links, none of which have any apparent connection to the mark or the domain name, presumably for Respondent's commercial gain”).
Additionally, there is evidence as mentioned above regarding rights and legitimate interests that Respondent is using <agilent1200.com> to support malware. Respondent’s registration and use of the at-issue domain name to further malware suggests Respondent’s bad faith under the Policy. See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the AGILENT mark when it registered <agilent1200.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety and wide use of Complainant’s trademark as well as from the inclusion of the number “1200” in the domain. The number “1200” is an overt reference to Complainant’s 1200 series of products. Respondent’s prior knowledge of Complainant’s AGILENT trademark further indicates Respondent’s bad faith registration and use of <agilent1200.com> 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 ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agilent1200.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 11, 2023
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