The Complainant is WinShuttle LLC, United States of America (“Complainant”), represented by Paul Hastings LLP, United States of America.
The Respondent is Bill Atkinson, United States of America (“Respondent”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 26, 2020. On September 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 30, 2020, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on October 20, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 9, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 24, 2020. The Center appointed M. Scott Donahey as the sole panelist in this matter on November 29, 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 the provider of data management and automation products to deliver to enterprise organizations software platforms that provide various solutions to Complainant’s customers, including process animation and optimization, data accuracy and compliance improvement, operational agility amplification, and management of data. Complainant currently delivers software solutions that intersect with nearly every line of business, including procurement and purchasing, supply chain management sales and operations, and brand and product management. Complainant has registered the WINSHUTTLE trademark with the United States Patent and Trademark Office (USPTO), registration no. 3076373 and which registration issued on April 4, 2006. Complaint, Annex 7. Complainant has extensively promoted the WINSHUTTLE mark and the products with which it is associated. Complaint, Annex 8. Complainant also registered the domain name Respondent registered the disputed domain on June 19, 2020. Complaint, Annex 4. Respondent does not use the disputed domain name to resolve to a web site, but rather uses it in email addresses in emails emanating from the disputed domain name and impersonating Complainant’s employees. An example of one such email was attached to the Complaint as Annex 11. The emails are used to “phish” for Complainant’s confidential banking information from its customers, using the names of Complainant’s employees as the “sender” of the email. Complaint, Annex 11. 5. Parties’ Contentions A. Complainant Complainant asserts that the disputed domain name is identical or confusingly similar to Complainant’s WINSHUTTLE trademark. Complainant contends that Respondent has no rights or legitimate interests in respect to the disputed domain name. Finally, Complainant alleges that the disputed domain name has been registered and is being used in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings “A Panel shall 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 directs that the complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The disputed domain name consists of Complainant’s WINSHUTTLE trademark with an “s” appended to the end. The Panel has no difficulty in finding that the disputed domain name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith Respondent registered the disputed domain name But Respondent has conceived of a use, albeit one that is illegitimate. Respondent has used the disputed domain name to pose as an employee of Complainant, seeking banking information from Complainant’s customers. This type of illegitimate use of a domain name has acquired the Internet name of “phishing”, the use of a domain name in an attempt to “catch” an unsuspecting Internet user into providing funds or other items of value to the domain name registrant in the belief that the user is providing those funds or items to a legitimate business of that name or similar name. Accordingly, the Panel has no difficulty in finding that Respondent has registered and is using the disputed domain name in bad faith. 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 M. Scott Donahey
Sole Panelist
Date: November 30, 2020
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