Complainant is Halliburton Energy Services, Inc., United States of America (“United States”), represented by Polsinelli PC Law firm, United States.
Respondent is Domains By Proxy LLC, United States / Monica Kibbe, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 29, 2020. On January 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 29, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on February 5, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on February 6, 2020. The Center verified that Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 7, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 27, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 28, 2020. The Center appointed Phillip V. Marano as the sole panelist in this matter on March 18, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background Complainant was founded in 1919 and has since become one of the world’s largest providers of products and services to the energy industry. Complainant owns valid and subsisting registrations for the HALLIBURTON trademark in numerous countries, including in United States, with the earliest priority dating back at least as early as January 15, 1948. Respondent registered the disputed domain name on January 30, 2019. At the time of this Complaint, the disputed domain name does not resolve to any active website content, but has been actively used by Respondent in connection with fraudulent correspondence sent to Complainant’s customers through “[...]@haliburtom.com” email addresses. 5. Parties’ Contentions A. Complainant Complainant asserts ownership of the HALLIBURTON trademark and has adduced evidence of trademark registrations in numerous regions and countries around the world including in the United States, with earliest priority dating back at least as early as January 15, 1948. The disputed domain name is confusingly similar to Complainant’s HALLIBURTON trademark, and to Complainant’s Complainant further asserts that Respondent lacks any rights or legitimate interests in the disputed domain name based on: Respondent’s typosquatting on Complainant’s HALLIBURTON trademark; Respondent’s use of the disputed domain name to target customers of Complainant in a fraudulent email scheme in which Respondent attempted to induce customers to change the bank account payment information associated with Complainant; and the lack of any evidence that Respondent is known by the HALLIBURTON trademark. Complainant argues that Respondent has registered and used the disputed domain name in bad faith for numerous reasons, including: Respondent’s intentional typosquatting on the HALLIBURTON trademark; Respondent’s use of the disputed domain name to target customers of Complainant in a fraudulent email scheme in which Respondent attempted to induce customers to change the bank account payment information associated with Complainant; and Respondent’s use of a proxy registration service to obscure its identity. In particular, Complainant submitted evidence of an email exchange with one of its customers wherein false bank account information is provided by individuals using an “[...]@haliburtom.com” email address, as demonstrated by the annotated, extracted SMTP headers that were also provided by Complainant. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings In order to succeed in its Complaint, Complainant must establish in accordance with paragraph 4(a) of the Policy: i. the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights; Although Respondent did not reply to Complainant’s contentions, the burden remains with Complainant to establish by a balance of probabilities, or a preponderance of the evidence, all three elements of paragraph 4(a) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3 (“A respondent’s default would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true. Panels have been prepared to draw certain inferences in light of the particular facts and circumstances of the case, e.g. where a particular conclusion is prima facie obvious, where an explanation by the respondent is called for but is not forthcoming, or where no other plausible conclusion is apparent.”); The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064 (“The Respondent’s default does not automatically result in a decision in favor of the complainant. The Complainant must still prove each of the three elements required by Policy paragraph 4(a)”). A. Identical or Confusingly Similar Ownership of a nationally or regionally registered trademark serves as prima facie evidence that Complainant has trademark rights for the purposes of standing to file this Complaint. WIPO Overview 3.0 , section 1.2.1 . Complainant submitted evidence that the HALLIBURTON trademark has been registered in numerous countries around the world, including in the United States where domain name registration data suggests that Respondent is located, with priority dating back to January 15, 1948, more than 70 years before the disputed domain name was registered by Respondent. Thus, the Panel finds that Complainant’s rights in the HALLIBURTON trademark have been established pursuant to the first element of the Policy. The only remaining question under the first element of the Policy is whether the disputed domain name is identical or confusingly similar to Complainant’s HALLIBURTON trademark. In this Complaint, the disputed domain name is confusingly similar to Complainant’s HALLIBURTON trademark because, the disputed domain name is an intentional typographical variation of the HALLIBURTON trademark. WIPO Overview 3.0 , section 1.7 . (“This test 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 … [I]n cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar...”). It is well established that domain names which consist of common, obvious or intentional misspellings of trademarks are considered to be confusingly similar for the purposes of the first element of the Policy. WIPO Overview 3.0 , section 1.9 (“Examples of such typos include (i) adjacent keyboard letters, (ii) substitution of similar-appearing characters […] (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters, (v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers”). See e.g. Edmunds.com, Inc. v. Digi Real Estate Foundation,WIPO Case No. D2006-1043 (“This is clearly a ‘typosquatting’ case where the disputed domain name is a slight misspelling of a registered trademark to divert internet traffic […] In fact, the domain name comprises the Complainant’s trademark […] with a single misspelling of an element of the mark: a double consonant ‘s’ at the end.”) Indeed, in this Complaint, Respondent’s singularizing of the ordinarily double consonant “l” letters, and substitution of the keyboard adjacent “n” and “m” letters, constitutes obvious and intentional typosquatting. In view of Complainant’s registration for the HALLIBURTON trademark, and Respondent’s clear attempt at typosquatting on the HALLIBURTON trademark, the Panel concludes that Complainant has established the first element of the Policy. B. Rights or Legitimate Interests Complainant must make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, shifting the burden of production on this element to Respondent to come forward with evidence demonstrating such rights or legitimate interests. Where, as in this Complaint, Respondent fails to come forward with any relevant evidence, Complainant is deemed to have satisfied the second element of the Policy. WIPO Overview 3.0, section 2.1. It is evident that Respondent, identified by registration data for the disputed domain name as Monica Kibbe, is not commonly known by the disputed domain name or Complainant’s HALLIBURTON trademark. UDRP panels have categorically held that use of a domain name for illegal activity – including the impersonation of the complainant and other types of fraud – can never confer rights or legitimate interests on a respondent. Circumstantial evidence can support a credible claim made by Complainant asserting Respondent is engaged in such illegal activity, including that Respondent has masked its identity to avoid being contactable. WIPO Overview 3.0, section 2.13. See e.g. Graybar Services Inc. v. Graybar Elec, Grayberinc Lawrenge,WIPO Case No. D2009-1017 (“Respondent has used the domain name to pretend that it is the Complainant and in particular to create false emails pretending that they are genuine emails coming from the Complainant and one of its senior executives”). In this Complaint, Complainant has submitted compelling evidence of an email exchange with one of its customers wherein false bank account information is provided by individuals using an “[...]@haliburtom.com” email address, as demonstrated by the annotated, extracted SMTP headers also provided by Complainant. In view of Respondent’s use of the intentionally typographical disputed domain name to spoof Complainant and attempt to defraud Complainant’s customers, as well as Respondent’s use of a proxy registration service to mask its identity, the Panel concludes that Complainant has established the second element of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy proscribes the following non-exhaustive circumstances as evidence of bad faith registration and use of the disputed domain name: i. circumstances indicating that Respondent has registered or Respondent has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark to a competitor of that Complainant, for valuable consideration in excess of Respondent’s documented out of pocket costs directly related to the disputed domain name; or ii. Respondent has registered the disputed domain name in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or iii. Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or iv. by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. UDRP panels have categorically held that registration and use of a domain name for illegal activity – including impersonation, passing off, and other types of fraud – is manifestly considered evidence of bad faith within paragraph 4(b)(iv) of the Policy. WIPO Overview 3.0, section 3.1.3. Use of the disputed domain name by Respondent to pretend that it is Complainant or that it is associated with Complainant “brings the case within the provisions of paragraph 4(b)(iii) of the Policy, for it shows Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, namely Complainant”. Graybar Services Inc. v. Graybar Elec, Grayberinc Lawrenge, supra; see also GEA Group Aktiengesellschaft v. J. D.,WIPO Case No. D2014-0357 (concluding that Respondent’s use of the disputed domain name to disrupt the Complainant’s business by using it to impersonate the Complainant for commercial gain was evidence of respondent’s bad faith registration and use of the disputed domain). Respondent’s wrongful use of Complainant’s HALLIBURTON trademark to attempt to misappropriate Complainant’s customer payments, by using the disputed domain name to spoof Complainant, constitutesabusive registration of the disputed domain name under the Policy.See CareerBuilder, LLC v. Stephen Baker,WIPO Case No. D2005-0251; The Boots Company, PLC v. The programmer adviser,WIPO Case No. D2009-1383. See e.g. WSI Holdings Ltd. v. WSI House,WIPO Case No. D2004-1089 (“Respondent appears to be engaged in ‘phishing’ for mistaken potential employees of the Complainant […] Respondent (1) has adopted a confusingly similar domain name, (2) it has used the trade dress of the Complainant’s website, and (3) it has sought to attract users to its site by creating confusion between its site and the Complainant’s. It has clearly engaged in activity which fulfils the bad faith requirements of Paragraph 4(b)(iv) of the Policy”). Moreover, the act of typosquatting or registering a domain name that is a common misspelling of a mark in which a party has rights has often been recognized as evidence of per se bad faith registration and use. WIPO Overview 3.0, section 3.2.1 (Particular circumstances UDRP panels take into account in assessing whether the respondent’s registration of a domain name is in bad faith include: (i) the nature of the domain name ….). See also Paragon Gifts, Inc. v. Domain.Contact,WIPO Case No. D2004-0107 (citing National Association of Professional Baseball Leagues, d/b/a Minor League Baseball v. John Zuccarini,WIPO Case No. D2002-1011); ESPN, Inc. v. XC2,WIPO Case No. D2005-0444 (finding that the practice of typosquatting, of itself, is evidence of the bad faith registration of a domain name). The Panel concurs with this approach. It is evident that Respondent registered and used the disputed domain name as a typographical variant of Complainant’s HALLIBURTON trademark and Finally, where it appears that a respondent employs a privacy or proxy service merely to avoid being notified of a UDRP proceeding filed against it, UDRP panels tend to find that this supports an inference of bad faith. WIPO Overview 3.0, section 3.6. In this Complaint, Respondent’s use of a proxy registration service was clearly intended to elude or frustrate enforcement efforts by Complainant, and as such it demonstrates bad-faith registration and use of the disputed domain name. See Fifth Third Bancorp v. Secure Whois Information Service,WIPO Case No. D2006-0696 (the use of a proxy registration service to avoid disclosing the identity of the real party in interest is also consistent with an inference of bad faith when combined with other evidence of evasive, illegal, or irresponsible conduct). In view of Respondent’s use of the intentionally typographical disputed domain name to spoof Complainant and attempt to defraud Complainant’s customers, as well as Respondent’s use of a proxy registration service to mask its identity, the Panel concludes that Complainant has established the third element of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, Phillip V. Marano
ii. Respondent has no rights or legitimate interests in respect of the disputed domain name; and
iii. the disputed domain name has been registered and is being used in bad faith.
Sole Panelist
Date: March 25, 2020
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