WIPO Arbitration and Mediatin Center
ADMINISTRATIVE PANEL DECISION
F5 Networks, Inc. v. Dennis Brooks
Case No. D2016-2476
1. The Parties
The Complainant is F5 Networks, Inc. of Seattle, Washington, United States of America (“United States” or “U.S.”), represented by Rosen Lewis, PLLC, United States.
The Respondent is Dennis Brooks of New York, United States.
2. The Domain Name and Registrar
The disputed domain name <f5-incorporated.com> is registered with eNom, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2016. On December 7, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s contact details. The Complainant filed an amended Complaint on December 13, 2016.
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 the Respondent of the Complaint, and the proceedings commenced on December 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 4, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2017.
The Center appointed Martin Schwimmer as the sole panelist in this matter on January 20, 2017. 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 provides communication network products and services. It has used the F5 trademark (the “Trademark”), registered in the United States in 1997, since 1996. The disputed domain name was allegedly used by the Respondent to post fake job listings purporting to originate with the Complainant, presumably to lure job‑seeking applicants to disclose personal information in “interviews” with the Respondent.
The disputed domain name was registered on August 22, 2016 and currently resolves to an error page.
5. Parties’ Contentions
The Complainant owns U.S. registrations for the mark F5 and variants, which it uses in connection with a wide range of communication network products and services. Its earliest registration of the mark was received in 1997. Examples of the Complainant’s use of its F5 family of trademarks can be seen on its website at “www.f5.com”.
The Complainant alleges that because the disputed domain name incorporates its trademark in its entirety alongside the corporate suffix, “incorporated”, as well as the generic Top-Level Domain (“gTLD”) suffix, the disputed domain name is confusingly similar to the Trademark.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name, as the Respondent has no connection or affiliation with the Complainant; it is not known as “F5 Incorporated”, it has not received a license or other authorization from the Complainant, and it is not making legitimate non-commercial or fair use of the disputed domain name.
The Complainant further submits that the Respondent utilized the disputed domain name to post fake job listings so as to solicit personal information from users responding to such listings. The Respondent’s communications to users allegedly contained the names from actual former employees of the Complainant. The Complainant alleges that it has contacted the Federal Bureau of Investigation in regard to this matter.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name incorporates the Complainant’s F5 trademark in its entirety with the addition of the descriptive term “-incorporated”. As “-incorporated” is a common corporate suffix, it, and the gTLD suffix “.com”, may be disregarded as not distinguishing for purposes of the Policy. Thus, the Panel finds that the Complainant has established that the disputed domain name is confusingly similar to the Complainant’s mark pursuant to paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant alleges that the Respondent has no form of association with the Complainant that would allow it to utilize the Complainant’s trademark. Furthermore, the Respondent’s organization name is not reflected in the disputed domain name. The Complainant has made a prima facie showing that none of the three circumstances establishing rights or legitimate interests apply, thus shifting the burden of production on to the Respondent. See Philip Morris USA Inc. v. Mary Shelly, WIPO Case No. D2006-1367.
The Respondent has not responded to the Complainant’s contentions. The disputed domain name is inactive at this time. However, the Complainant has provided a sworn affidavit as to the prior use of the disputed domain name. The affidavit alleges that the Respondent has in fact impersonated the Complainant, for the purpose of obtaining personal information from deceived job applicants (see further discussion below in section 6.C.). In light of the Complainant’s unrebutted prima facie case, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Panel finds that the Respondent clearly targeted the Complainant. The Complainant’s unrebutted sworn affidavit indicates that it has received calls from would-be job applicants, indicating that they contacted agents of the Respondent in response to job listings on the Respondent’s site, under the mistaken impression that they were contacting the Complainant. The job seekers participated in communications with agents of the Respondent who solicited personal identifying information from them. The Complainant’s sworn affidavit contains as an Exhibit a document sent to such job seekers, entitled “Non-Disclosure Agreement”, headed by the Complainant’s logo, and signed by an individual using the real name of a former officer of the Complainant. It is beyond coincidence that the Respondent could select the disputed domain name without knowing of the Complainant’s rights. The Respondent’s apparent attempts at identity theft (i.e., by using the name of a former officer of the Complainant) are further demonstrations of its bad faith.
The Panel may also draw negative inferences against the Respondent from its default.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith, and that the Complainant has met the requirements of paragraph 4(a)(iii) of the Policy.
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 <f5-incorporated.com> be transferred to the Complainant.
Date: February 8, 2017