Complainant is HighRadius Corporation, United States of America (“United States”), represented by Adsero IP, United States.
Respondent is Scott Bradley, Edge Technologies, 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 March 2, 2021. On March 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 3, 2021, 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 March 15, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 4, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 6, 2021. The Center appointed Phillip V. Marano as the sole panelist in this matter on April 20, 2021. 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 an enterprise software-as-a-service company that helps automate accounts receivable and treasury processes for companies in a wide variety of industries. Complainant owns a valid and subsisting registration for the HIGH RADIUS trademark in the United States, with a first use date of December 16, 2016 and a registration date of November 20, 2018. Respondent registered the disputed domain name on December 17, 2020. At the time of this Complaint, the disputed domain name did not resolve to any website content, but it had been used by Respondent in connection with emails sent from the “[...]@hlghradius.com” email address, wherein Respondent attempted to impersonate Complainant to Complainant’s customers. 5. Parties’ Contentions A. Complainant Complainant asserts ownership of the HIGH RADIUS trademark and has adduced evidence of a trademark registration in the United States, with a first use date of December 16, 2016. The disputed domain name is confusingly similar to Complainant’s HIGH RADIUS trademark, according to Complainant, because it consists of an intentional misspelling of Complainant’s HIGH RADIUS trademark, substituting the similar-appearing lowercase letter “l” for the lowercase letter “I” in the “high” portion of the HIGH RADIUS trademark. Complainant further asserts that Respondent lacks any rights or legitimate interests in the disputed domain name based on: the lack of any license or authorization from Complainant for Respondent to use the HIGH RADIUS trademark; the lack of any evidence that Respondent is known by the phrase “High Radius”; and Respondent’s use of the disputed domain name to impersonate Complainant and send phishing emails to Complainant’s customers in an attempt to mislead them into depositing money into Respondent’s bank account. Complainant argues that Respondent has registered and used the disputed domain name in bad faith for numerous reasons, including: Respondent’s intentional misspelling of, and typosquatting on, Complainant’s HIGH RADIUS trademark; Respondent’s use of the disputed domain name to impersonate Complainant and send phishing emails to Complainant’s customers in an attempt to mislead them into depositing money into Respondent’s bank account; and Respondent’s use of false domain name registration data to the extent that Respondent uses a misspelled version of an address and telephone number for a completely different business located in Oklahoma City. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings 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 HIGH RADIUS trademark has been registered in the United States with a first use date of December 16, 2016, approximately four years before the disputed domain name was registered by Respondent. Thus, the Panel finds that Complainant’s rights in the HIGH RADIUS 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 HIGH RADIUS trademark. In this Complaint, the disputed domain name is confusingly similar to Complainant’s HIGH RADIUS 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. Furthermore, 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, 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.”) Here, the Panel concurs that Respondent has intentionally transposed the similar-appearing lowercase letter “l” for the lowercase letter “i” in the “high” element of Complainant’s HIGH RADIUS trademark, solely in furtherance of Respondent’s phishing scheme. In view of Complainant’s United States registration for the HIGH RADIUS trademark, and Respondent’s clear attempt at typosquatting on the HIGH RADIUS 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, section 2.1. It is evident that Respondent, identified by registration data for the disputed domain name as “Scott Bradley, Edge Technologies”, is not commonly known by the disputed domain name or Complainant’s HIGH RADIUS trademark. In addition, 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.”) In this case, Complainant has adduced email evidence that Respondent used the disputed domain name, on the very same day it was registered by Respondent, to send emails from the […]@hlghradius.com email address, wherein Respondent attempted to impersonate Complainant to Complainant’s customers. Respondent’s email claimed that it “recently changed bank accounts and we would like to take this opportunity to inform you of the new payment instructions,” in an attempt to misappropriate payments from Complainant’s customers. 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. Accordingly, in view of Respondent’s attempts to pass itself off as Complainant in furtherance of its phishing scheme, 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 also categorically held that registration and use of a domain name for illegal activity - including impersonation, passing off, phishing, 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 disrupts the Complainant’s business by using it to impersonate the Complainant for commercial gain and is evidence of Respondent’s bad faith registration and use of the disputed domain name. GEA Group Aktiengesellschaft v. J. D.,WIPO Case No. D2014-0357. Indeed, wrongful use of another’s trademark to extort payments or 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,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.”) 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). In this case, as discussed above, Complainant has adduced clear and direct email evidence that Respondent used the disputed domain name purely in furtherance of an illegal phishing scheme. Finally, the use of false registration data in connection with a disputed domain name further supports a finding of bad faith registration and use in this case. See e.g. Action Instruments, Inc. v. Technology Associates,WIPO Case No. D2003-0024 (Providing false contact information violates paragraph 2 of the Policy, which requires a registrant to represent that the statements it “made in [its] Registration Agreement are complete and accurate.” Maintaining that false contact information in the WhoIs records (which can easily be updated at any time) after registration constitutes bad faith use of the domain name because it prevents a putative complainant from identifying the registrant and investigating the legitimacy of the registration.”); Royal Bank of Scotland Group v. Stealth Commerce,WIPO Case No. D2002-0155; Home Director, Inc. v. HomeDirector,WIPO Case No. D2000-0111 (April 11, 2000). On this issue, the Panel concurs with Complainant, that Respondent knowingly provided misspelled, false, and inaccurate domain name registration data, partly misappropriated from a separate and legitimate business operating in Oklahoma City, purely to obfuscate Respondent’s illegal phishing scheme and avoid identification. 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: May 4, 2021
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