Westmore · UDRP DecisionCornlng.com
The Panel ordered transfer of <cornlng.com> to Corning Incorporated. It found the domain confusingly similar to the CORNING trademark because it replaced the visually similar letter “i” with “l”; found no rights or legitimate interests after the Complainant established an unrebutted prima facie case; and found bad-faith registration and use based on typosquatting and the Respondent’s impersonation of the Complainant. The Panel also noted that the Respondent appeared to have used a third party’s name and contact details when registering the domain.
The timeline behind cornlng.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind cornlng.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates that a domain need not host an active website to constitute bad-faith use. A visually deceptive typo used as an email domain for corporate impersonation can satisfy the UDRP, particularly where the mark is longstanding, the registrant offers no legitimate explanation, and the registration information appears to misuse a third party’s identity.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Corning Incorporated v. Name Redacted Case No. D2019-2226 1. The Parties The Complainant is Corning Incorporated, United States of America (“United States”), represented by Gowlings WLG (Canada) LLP, Canada. The Respondent is Name Redacted 1 . 2. The Domain Name and Registrar The disputed domain name <cornlng.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 13, 2019. On September 16, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 17, 2019, 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 and contact information for the disputed domain name. 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 September 20, 2019. On September 24, 2019, a third party contacted the Center regarding the claimed unauthorized use of its contact details in relation to the disputed domain name. In accordance with the Rules, paragraph 5, the due date for Response was October 10, 2019. The Respondent did not submit any formal response. Accordingly, the Center notified the Commencement of Panel Appointment Process on October 11, 2019. The Center appointed Jon Lang as the sole panelist in this matter on October 17, 2019. 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 a publicly traded company and one of the world’s leading innovators in materials science, with a track record in excess of 165-years of life-changing inventions. The Complainant has enjoyed tremendous success and in 2018 alone, it generated USD11.29 billion in revenue. The Complainant operates a website at <corning.com>. The Complainant is the owner of over 325 trademark registrations worldwide for trademarks comprised of, or containing, CORNING (collectively, the “CORNING Trademarks”) including, by way of example, United States Registration No. 618649 (Registration date: January 3, 1956) and Saudi Arabia Registration No. 1435018875 (Registration date: December 17, 2014), both for CORNING. The Respondent registered the disputed domain name (the Domain Name) on October 28, 2018. 5. Parties’ Contentions A. Complainant A brief summary of the Complainant’s contentions are set out below. General The Respondent has been using the Domain Name as an instrument. Using the email address “[...]@cornlng.com”, which is nearly identical to the Complainant’s email address “[...]@corning.com”, the Respondent has issued email correspondence to unsuspecting clients of the Complainant seeking sensitive financial information or directing the recipients to deposit funds in a United Kingdom bank account. The signatory of the Respondent’s email was the Complainant generally, and at times, the Complainant’s Executive Vice President & Chief Financial Officer. The Respondent’s activities became of such a concern, that the Complainant filed a police report with the local authorities. The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights The Complainant has rights in the CORNING Trademarks which enjoy widespread recognition, have generated significant goodwill and have become famous. The Domain Name constitutes a clear case of typosquatting, as the Respondent has intentionally misspelled the famous CORNING trademark by substituting the letter “i” with the closely resembling letter “l”. It is a well-established principle that typosquatting constitutes prima facie evidence of confusion. It is evidence of an intent on the part of the Respondent to deceive the public. The Domain Name is nearly identical to the Complainant’s registered CORNING trademarks. The fact that the Respondent has substituted the letter “i” with the closely resembling letter “l”, does nothing to diminish confusion as the Domain Name remains virtually identical. The addition of a generic Top-Level Domain, such as “.com” is without legal significance in determining the issue of similarity. The Domain Name is confusingly similar to the CORNING Trademarks in which the Complainant has rights, and continues to have rights. The Respondent has no rights or legitimate interests in respect of the Domain Name The Respondent registered the Domain Name without permission of the Complainant. An unauthorized party cannot claim a legitimate interest in a domain name that contains, or is confusing with, a complainant’s mark, as the activities of such a party cannot be said to constitute a bona fide offering of goods or services. Use which intentionally trades on the notoriety of another cannot constitute a bona fide offering of goods or services (and to conclude otherwise would mean that a respondent could rely on intentional infringement to demonstrate a legitimate interest). Engaging in typosquatting activities undermines a claim of legitimate interest or rights. Impersonating a complainant by using a disputed domain name as part of an email address in the furtherance of a fraudulent scheme constitutes prima facie evidence of a lack of rights. There is no evidence to suggest that the Respondent has ever used, or engaged in preparations to use, the Domain Name or a name corresponding thereto, in connection with a bona fide offering of goods or services. There has never been any relationship between the Complainant and the Respondent. The Respondent is not licensed, or otherwise authorized, be it directly or indirectly, to register or use, the CORNING Trademarks in any manner whatsoever, including in, or as part of, a domain name. The Respondent registered the Domain Name as part of a fraudulent scheme to unlawfully extract money and sensitive financial information from unsuspecting third parties. Using the Domain name as part of an email address that is virtually identical to that of the Complainant, creates the false impression that the email was sent by the Complainant, when in fact it was not. The Respondent’s activities may be described as insidious, fraudulent and completely undermine any claim of rights. There is no evidence to suggest that the Respondent has been commonly known by the Domain Name, or that the Respondent is making, or intends to make, a legitimate noncommercial or fair use of the Domain Name. The Respondent has no rights or legitimate interests in the Domain Name. The Domain Name was registered and is being used in bad faith The Respondent’s use of the email address “[...]@cornlng.com” to impersonate the Complainant in the furtherance of a fraudulent scheme, constitutes evidence of bad faith. The practice of typosquatting is itself evidence of bad faith registration. Whilst under paragraph 4(b)(iv) of the Policy, bad faith registration will be found where a respondent is using a domain name to intentionally attempt to attract, for commercial gain, Internet users to a website by creating a likelihood of confusion with a complainant’s mark as to source, sponsorship, affiliation, or endorsement, it is not necessary for a disputed domain name to be associated with an active website for a finding of bad faith to be made. UDRP Panels have held that bad faith can be established under paragraph 4(b)(iv) where a domain name, if ever put to use, would ultimately result in consumer confusion. The Domain Name is virtually identical to the CORNING trademark with the substitution of the letter “i” for the letter “l”, which is intended to confuse and deceive end users as to source or sponsorship. Thus, the Domain Name, if ever put to use in association with an active website, would likely confuse potential consumers into believing that the Respondent is somehow affiliated with, or endorsed by, the Complainant. Furthermore, the Domain Name would put the Respondent in a position to reap a financial benefit if ever used. As the Respondent is engaged in a fraudulent scheme, it is reasonable to conclude that any active use of the Domain Name would be for unlawful financial gain. Whilst the Domain Name does not resolve to an active website, it is still being used i.e . as an email address in furtherance of a fraudulent scheme. A respondent’s actual or constructive knowledge of a complainant’s rights in a domain name at the time of registration has been found to reinforce a finding of bad faith. Given that the Respondent is impersonating the Complainant, there can be no doubt that the Respondent had actual knowledge of the CORNING Trademarks at the time of registration. The Respondent also had constructive knowledge by virtue of the CORNING Trademarks. The Domain Name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy requires a complainant to prove that a respondent has registered a domain name which is: (i) identical or confusingly similar to a trademark or service mark in which a 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 complainant must prove each of these three elements to succeed. A. Identical or Confusingly Similar The Complainant is the owner of the CORNING Trademarks and thus clearly has rights in them. Ignoring the generic Top-Level Domain “.com” (as the Panel may do for comparison purposes), the Domain Name comprises the CORNING trademark except that the letter “i” has been substituted for the letter “l”. These letters are visually similar but as the CORNING trademark and Domain Name are not identical, the issue of confusing similarity must be considered. Application of the confusing similarity test under the UDRP typically involves a comparison, on a visual or aural level, between the trademark and the domain name. The CORNING trademark is clearly recognizable within the Domain Name. The substitution of the letter “i” for the letter “l” does nothing to diminish the visual impression created by the Domain Name, i.e . that it is identical to the Complainant’s CORNING trademark. To create such a visual impression was no doubt the very purpose in the Respondent choosing the Domain Name that it did. Given the switch of letter, the Domain Name and mark cannot be said to be identical, but the Domain Name is certainly confusingly similar to the Complainant’s CORNING trademark. The Panel finds that the Domain Name is confusingly similar to the CORNING trademark for the purposes of the Policy and thus paragraph 4(a)(i) of the Policy has been established. B. Rights or Legitimate Interests By its allegations, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name and, as such, the burden of production shifts to the Respondent to come forward with arguments or evidence demonstrating that it does in fact have such rights or legitimate interests. The Respondent has not done so and accordingly, the Panel is entitled to find, given the prima facie case made out by the Complainant, that the Respondent indeed lacks rights or legitimate interests in the Domain Name. Despite the lack of any answer to the Complaint however, the Panel is entitled to consider whether there would be anything inappropriate in such a finding. The answer to that question must be a resounding “No”. It is difficult to conceive of any argument that could be advanced in the circumstances that would assist the Respondent. This is a clear case of typosquatting. In the circumstances, the Panel concludes that the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Domain Name is confusingly similar to the CORNING trademark and may well be mistaken as being identical. The Respondent has no legitimate rights or interests in the Domain Name. In fact, its only or prime interest in the Domain Name would appear to be illegitimate, given its impersonation of the Complainant for its own nefarious purposes, as described earlier. No Response to the Complaint has been filed, no doubt because there is no response to the Complaint the Respondent could give which might cast doubt on the contention that registration and use of the Domain Name has been in bad faith. Moreover, as described in the footnote at the outset of this Decision, not only has the Respondent set out to impersonate the Complainant, the Respondent also appears to have used the name and contact details of a third party to do so. The Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the 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 Domain Name <cornlng.com> be transferred to the Complainant. Jon Lang Sole Panelist Date: October 30, 2019 1 The Respondent appears to have used the name and contact details of a third party when registering the disputed domain name. In light of the potential identity theft, the Panel has redacted the Respondent’s name from this Decision. However, the Panel has attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the disputed domain name, which includes the name of the Respondent. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, and has indicated Annex 1 to this Decision shall not be published due to the exceptional circumstances of this case. See ASOS plc. v. Name Redacted , WIPO Case No. D2017-1520 ; Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted , WIPO Case No. D2009-1788 .
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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