Complainant is Varian Medical Systems, Inc., United States of America (“United States”), represented by Sideman & Bancroft LLP, United States.
Respondent is Domains By Proxy, LLC, United States / Varian Medical, 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 May 5, 2020 and was related to the disputed domain name and the domain name On May 15, 2020, the Center confirmed that the administrative proceeding was suspended until June 14, 2020, for purposes of settlement discussions concerning the domain name The Center sent an email communication to Complainant on June 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 June 10, 2020. The Center verified that the 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 June 18, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 8, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 9, 2020. The Center appointed Phillip V. Marano as the sole panelist in this matter on July 20, 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 is a manufacturer of medical and scientific devices, and software for treating cancer and other conditions. Complainant employs over 7,100 individuals at manufacturing sites around the globe including in North America, Europe and China. Complainant owns valid and subsisting registrations for the VARIAN trademark in numerous countries, including in the United States, with the earliest priority dating back to November 25, 1949. Respondent registered the disputed domain name on March 17, 2020. At the time of this Complaint, the disputed domain name was used by Respondent to impersonate Complainant talent acquisition personnel and send emails to online jobseekers originating from the “@variancareer.com” email address. 5. Parties’ Contentions A. Complainant Complainant asserts ownership of the VARIAN 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 to November 25, 1949. The disputed domain name is confusingly similar to Complainant’s VARIAN trademark, according to Complainant, because it wholly incorporates Complainant’s VARIAN trademark, which is distinctive and has no meaning apart from acting as a source indicator for Complainant, and addition of the word “career” in fact increases confusion among jobseekers looking online for career opportunities with Complainant. Complainant further asserts that Respondent lacks any rights or legitimate interests in the disputed domain name based on: Respondent’s false use of the name “Varian Medical” to register the disputed domain name; the lack of any association between Complainant and Respondent, or authorization for Respondent to use the VARIAN trademark; the lack of any evidence that Respondent is actually known by the name “varian”; and Respondent’s use of the disputed domain name and “@variancareer.com” email address to impersonate Complainant, tricking jobseekers into believing Complainant has hired them and sending payments to Respondent to allegedly purchase work-required equipment. Complainant argues that Respondent has registered and used the disputed domain name in bad faith for numerous reasons, including: Respondent’s false use of the name “Varian Medical” to register the disputed domain name; and Respondent’s use of the “@variancareer.com” email address to impersonate Complainant, interview jobseekers, offer them remote work for Complainant, phish for personal and financial information from jobseekers, and defraud money from Jobseekers. 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; 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. 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. UDRP 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 VARIAN trademark has been registered in the United States where Respondent allegedly resides, with priority dating back to November 25, 1949, over seventy years before the disputed domain name was registered by Respondent. Thus, the Panel finds that Complainant’s rights in the VARIAN 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 VARIAN trademark. In this Complaint, the disputed domain name is confusingly similar to Complainant’s VARIAN trademark because, disregarding the “.com” generic Top-Level Domain (“gTLD”), the trademark is contained in its entirety within the disputed domain name. 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...”). gTLDs, such as “.com” in the disputed domain name, are generally viewed as a standard registration requirement and are disregarded under the first element. WIPO Overview 3.0, section 1.11. The confusing similarity is not dispelled by combination with the term “career”. WIPO Overview, section 1.8 (Additional terms “whether descriptive, geographic, pejorative, meaningless, or otherwise” do not prevent a finding of confusing similarity where the relevant trademark is recognizable within the disputed domain name); seealso AT&T Corp. v. WorldclassMedia.com, WIPO Case No. D2000-0553 (“Each of the domain names in dispute comprises a portion identical to [the ATT trademark] in which the Complainant has rights, together with a portion comprising a geographic qualifier, which is insufficient to prevent the composite domain name from being confusingly similar to Complainant’s [ATT trademark]”) OSRAM GmbH v. Cong Ty Co Phan Dau Tu Xay Dung Va Cong Nghe Viet Nam,WIPO Case No. D2017-1583 (“[T]he addition of the letters ‘hbg’ to the trademark OSRAM does not prevent a finding of confusing similarity between the Disputed Domain Name and the said trademark.”). In view of Complainant’s registration for the VARIAN trademark, and Respondent’s incorporation of that trademark in its entirety in the disputed domain name, 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, section 2.1. It is evident that Respondent has chosen to falsely identify itself through registration data for the disputed domain name as “Varian Medical” in furtherance of its attempts to impersonate Complainant in order to phish for financial information and defraud money from individuals seeking employment with Complainant online. 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, or that Respondent’s website has been suspended by its hosting provider. 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”). See also The Commissioners for HM Revenue and Customs v. Name Redacted,WIPO Case No. D2017-0501 (“In addition, the disputed domain names … have had their web hosting suspended as a result of fraudulent activities. This is evidence of bad faith registration and use of the disputed domain names.”) To this end, the second and third elements of the Policy may be assessed together where clear indicia of bad faith suggests that there cannot be any Respondent rights or legitimate interests. WIPO Overview 3.0, section 2.15. In view of Respondents attempts to impersonate Complainant in order to phish for financial information and defraud money from jobseekers, 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 provides 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,WIPO Case No. D2009-1017; 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). Moreover, wrongful use of others’ trademarks to extort information from unsuspecting and unwary people, by using the disputed domain name for phishing activity, is considered abusive 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,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.”) See e.g. Go Daddy Operating Company, LLC v. Wu Yanmei, WIPO Case No. D2015-0177 (emails sent by the respondent from domain names using the complainant’s trademark in an attempt to obtain complainant’s customer information was held to be use of the disputed domain name for a phishing scheme and consequently bad faith under the Policy); AB Electrolux v. Piotr Pardo,WIPO Case No. D2017-0368 (engaging in fraudulent email phishing activities through unauthorized use of a trademark for obtaining data or deriving information is construed as bad faith under the Policy). Complainant has adduced strong evidence demonstrating that Respondent used the “@variancareer.com” email address to impersonate Complainant’s talent acquisition personnel in an elaborate attempt to phish for sensitive financial information and defraud money from online jobseekers. Specifically, Respondent made fraudulent offers of employment to online jobseekers contingent upon their completion of Internal Revenue Service Form W-4, and their acquisition of “training and home office” equipment. Jobseekers were required to advance payments to third parties associated with Respondent’s criminal enterprise, only to find that reimbursement all checks from Respondent were invalid due to insufficient funds. Jobseekers victimized by Respondent never received employment, never received any equipment, and are likely to be retargeted for further illegal activity, having divulged sensitive personal and financial information. Respondent’s conduct represents a common scam that is especially morally reprehensible in periods of economic downturn. In view of Respondent’s false use of the name “Varian Medical” to register the disputed domain name, Respondent’s attempted impersonation and attempts to passing itself off as Complainant’s talent acquisition personnel, and Respondent’s use of the disputed domain name to phish for sensitive financial data and defraud money from online jobseekers, 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
Sole Panelist
Date: July 29, 2020
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