DECISION

 

Agilent Technologies, Inc. v. matt.phillips@agilent.com matt.phillips@agilent.com / bbn

Claim Number: FA2402002084059

 

PARTIES

Complainant is Agilent Technologies, Inc. ("Complainant"), represented by Julie A. Kent of Holland & Hart LLP, Colorado, USA. Respondent is matt.phillips@agilent.com matt.phillips@agilent.com / bbn ("Respondent"), Ohio, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <agllenzt.com> ("Domain Name"), registered with Squarespace Domains II LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 15, 2024; Forum received payment on February 15, 2024.

 

On February 20, 2024, Squarespace Domains II LLC confirmed by e-mail to Forum that the <agllenzt.com> domain name is registered with Squarespace Domains II LLC and that Respondent is the current registrant of the name. Squarespace Domains II LLC has verified that Respondent is bound by the Squarespace Domains II 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 February 21, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 12, 2024 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@agllenzt.com. Also on February 21, 2024, 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 March 13, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Since 1999 Complainant, Agilent Technologies, Inc., has provided a variety of goods and services in the life sciences, diagnostics and the laboratory and scientific research industries.  Complainant asserts rights in the AGILENT mark through its registration of the mark in various jurisdictions including with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,643,345, registered on October 29, 2002). Respondent's <agllenzt.com> domain name is confusingly similar to Complainant's AGILENT mark, as it incorporates a misspelled version of the mark, replacing the "i" with an "l" and adding the letter "z", as well as adding the ".com" generic top-level domain ("gTLD").

 

Respondent has no rights or legitimate interests in the Domain Name. Complainant has not authorized or licensed Respondent to use the AGILENT mark, nor is Respondent commonly known by the Domain Name. Further, Respondent is not using the <agllenzt.com> domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as Respondent uses the Domain Name to pass off as Complainant via email to operate a phishing scam.

 

Respondent registered and uses the <agllenzt.com> domain name in bad faith. The Domain Name does not resolve to an active website. Additionally, Respondent uses the Domain Name to pass off as Complainant (indeed named employees of Complainant) via email for commercial gain. Finally, Respondent had actual knowledge of Complainant's rights in the AGILENT mark at the time of registration.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the AGILENT mark.  The Domain Name is confusingly similar to Complainant's AGILENT 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.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

Complainant has rights in the AGILENT based upon registration of the mark with the USPTO (e.g. Reg. No. 2,643,345, registered on October 29, 2002). Registration of a mark with the USPTO sufficiently confers a complainant's rights in a mark for the purposes of 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").).

 

The Panel finds that of the Domain Name <agllenzt.com> is confusingly similar to the AGILENT mark because it incorporates a misspelled version of the mark (replacing the "i" with an "l" and adding the letter "z") while adding the ".com" gTLD. The mere misspelling of a mark, and appending a gTLD, is not sufficient to distinguish a disputed domain name from the mark. See Sainato's Restaurant and Catering Limited v. chen xue ming, FA 1781748 (Forum June 4, 2018) (finding the <sainatos.com> domain name is confusingly similar to the SAINATO'S RESTAURANT mark as it "appends the gTLD ".com" to an abbreviated version of the mark."); see also Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the "e" and "r" from the mark while adding the ".com" gTLD suffix.).

 

In support of the above conclusion the Panel notes that section 1.15 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition states that "In some instances, panels have however taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trademark through the disputed domain name."  In the present case, by reason of the facts outlined under the elements below, it is clear that Respondent has sought to target and indeed pass itself off as Complainant through the use of the Domain Name.  The Panel finds that the intention of Respondent to mislead Internet users into thinking it is Complainant or connected with Complainant confirms the confusingly similar nature of the Domain Name.

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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 AGILENT 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, FA 1613011 (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, FA 1621573 (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 "matt.phillips@agilent.com matt.phillips@agilent.com / bbn" as registrant of record. The uncontested evidence in the Complaint, which the Panel accepts, is that this is a fake name, being the work e-mail address of an employee of Complainant who is not connected with Respondent and indeed is being impersonated by Respondent. Coupled with 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 presently inactive which by itself does not show a bona fide offering of goods and services. Complainant alleges, and provides evidence supporting its allegations, that Respondent uses an email address associated with Domain Name to attempt to pass itself off as Complainant (indeed named employees of Complainant) in furtherance of a phishing scam (directing payment to be made to an account unconnected to the Complainant). Use of a disputed domain name to pass off as a complainant through emails 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 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); 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).

 

Registration and Use in Bad Faith

The Panel finds that, at the time Respondent registered the Domain Name, February 2, 2024, Respondent had actual knowledge of Complainant's AGILENT mark. The Respondent uses the Domain Name to pass itself off as Complainant (including named employees of Complainant) for financial gain or to disrupt Complainant's business. 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 an email address associated with the Domain Name to attempt to pass itself off as an employee of the Complainant to disrupt the Complainant's business or for financial gain. Using a disputed domain name to pass off as an employee of a complainant via email can demonstrate bad faith under Policy ¶¶ 4(b) (iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) ("Respondent uses the <abbuie.com> domain name to impersonate Complainant's CEO. Such use is undeniably disruptive to Complainant's business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)"); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).  Accordingly, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to Policy ¶ 4(b)(iv).

 

 The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <agllenzt.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: March 13, 2024