The Complainant is Applied Materials, Inc., United States of America (“United States”), represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is John Warren, 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 April 17, 2020. On April 17, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 18, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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 the Respondent of the Complaint, and the proceedings commenced on April 23, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 13, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 14, 2020. The Center appointed Lynda M. Braun as the sole panelist in this matter on May 21, 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 The Complainant is an American corporation with its headquarters located in California, United States. With approximately 22,000 employees and more than 100 locations across 18 jurisdictions worldwide, the Complainant operates as a leading manufacturer and supplier of products and services to the global semiconductor industry. The Complainant owns numerous trademarks across various jurisdictions, including in the United States, including, but not limited to: APPLIED MATERIALS, United States Registration No. 1943850, registered on December 26, 1995; and APPLIED MATERIALS, United States Registration No. 1980572, registered on June 18, 1996 (collectively, the “APPLIED MATERIALS Mark”). The Complainant registered the The Disputed Domain Name was registered on November 18, 2019. The Disputed Domain Name resolves to an inactive web page. The Respondent used the Disputed Domain Name to send emails to the Complainant’s business partners, fraudulently attempting to create the impression that such emails originated from the Complainant. The emails were sent by using the Disputed Domain Name from “@appliedmaterialinc.com” (for example, “[...]@appliedmaterialinc.com” and “[...]@appliedmaterialinc.com”), and sought to impersonate the Complainant in an attempt to fraudulently engage unsuspecting business partners into thinking they were entering into a commercial relationship with the Complainant. 5. Parties’ Contentions A. Complainant The following are the Complainant’s contentions: - The Disputed Domain Name is confusingly similar to the Complainant’s trademark; - The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and - The Disputed Domain Name was registered and is being used in bad faith as part of a phishing scheme in which the Respondent impersonated the Complainant so that it could enter into a commercial relationship with unsuspecting business partners of the Complainant. - The Complainant seeks the transfer of the Disputed Domain Name from the Respondent to the Complainant in accordance with paragraph 4(i) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order for the Complainant to prevail and have the Disputed Domain Name transferred to the Complainant, the Complainant must prove the following (Policy, paragraphs 4(a)(i)-(iii)): (i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) The Disputed Domain Name was registered and is being used in bad faith. A. Identical or Confusingly Similar This element consists of two parts: first, does the Complainant have rights in a relevant trademark and, second, is the Disputed Domain Name identical or confusingly similar to that trademark. The Panel concludes that the Disputed Domain Name is confusingly similar to the APPLIED MATERIALS Mark. It is uncontroverted that the Complainant has established rights in the APPLIED MATERIALS Mark based on its years of use as well as its registered trademarks for the APPLIED MATERIALS Mark in various jurisdictions worldwide. The general rule is that “registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive”. See CWI, Inc. v. Domain Administrator c/o Dynadot,WIPO Case No. D2015-1734. The Respondent has not rebutted this presumption, and therefore the Panel finds that the Complainant has rights in the APPLIED MATERIALS Mark. The Disputed Domain Name Finally, the addition of a gTLD such as “.com” in a domain name is technically required. Thus, it is well established that such element may be disregarded when assessing whether a domain name is identical or confusingly similar to a trademark. See Proactiva Medio Ambiente, S.A. v. Proactiva,WIPO Case No. D2012-0182. Accordingly, the first element of paragraph 4(a) of the Policy has been met by the Complainant. B. Rights or Legitimate Interests Under the Policy, a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name at issue. Once such a prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In this case, the Panel finds that the Complainant has made out a prima facie case. In particular, the Respondent has not submitted any arguments or evidence to rebut the Complainant’s prima facie case and there is no evidence in the record that the Respondent is in any way associated with the Complainant. Furthermore, the Complainant has not authorized, licensed, or otherwise permitted the Respondent to use its APPLIED MATERIALS Mark. The Disputed Domain Name redirects Internet users to a page that lacks content. As such, the Respondent has failed to make use of the Disputed Domain Name’s website and has not demonstrated any attempt to make legitimate use of the Disputed Domain Name, which evinces a lack of rights or legitimate interests in the Disputed Domain Name. See Philip Morris USA Inc. v. Muhammad Faisal,WIPO Case No. D2016-0621. Furthermore, the Respondent is using the Disputed Domain Name solely for the purpose of perpetrating a phishing scheme on unwitting Internet users. “Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.” WIPO Overview 3.0, section 2.13.1. Accordingly, the second element of paragraph 4(a) of the Policy has been met by the Complainant. C. Registered and Used in Bad Faith This Panel finds that, based on the record, the Complainant has demonstrated the existence of the Respondent’s bad faith pursuant to paragraph 4(b) of the Policy. First, the Disputed Domain Name was registered long after the Complainant’s APPLIED MATERIALS Mark. The Panel finds it likely that the Respondent had the Complainant’s APPLIED MATERIALS Mark in mind when registering the Disputed Domain Name. In this case, the Panel concludes that the Respondent is using the Disputed Domain Name for an illegitimate purpose that demonstrates knowledge of the Complainant’s trademark rights and a bad faith intent to register and use the Disputed Domain Name. By sending fraudulent emails and impersonating the Complainant’s employees, it is evident that the Respondent had actual knowledge of the Complainant, its business, and its APPLIED MATERIALS Mark. In light of the circumstances in this case, it is not possible to conceive of a plausible situation in which the Respondent would have been unaware of the Complainant’s APPLIED MATERIALS Mark at the time the Disputed Domain Name was registered. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. Second, as demonstrated above, the Respondent is using the Disputed Domain Name to perpetrate an impersonation scheme aimed at defrauding unwitting third parties. “As noted in section 2.13.1 [of WIPO Overview 3.0], given that the use of a domain name for per se illegitimate activity such as the sale of counterfeit goods or phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith.” WIPO Overview 3.0, section 3.1.4. See also The Royal Bank of Scotland Group plc v. Secret Registration Customer ID 232883 / Lauren Terrado,WIPO Case No. D2012-2093 (“Use of a disputed domain name for the purpose of defrauding Internet users by the operation of a ‘phishing’ website is perhaps the clearest evidence of registration and use of a domain name in bad faith. The fact that the website is currently inactive does not negate such a finding.”). Finally, the registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an entity that has no relationship to that mark may create a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4. Accordingly, the third element of paragraph 4(a) of the Policy has been met by the Complainant. 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 Lynda M. Braun
Sole Panelist
Date: June 2, 2020
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