WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pentair Flow Services AG v. Phillip Lentz, Pentair
Case No. D2018-0699
1. The Parties
The Complainant is Pentair Flow Services AG of Schaffhausen, Switzerland, represented by Roetzel & Andress LPA, United States of America ("United States").
The Respondent is Phillip Lentz, Pentair of Morrilton, Arizona, United States.
2. The Domain Name and Registrar
The disputed domain name <pentairs.com> (the "Domain Name") is registered with Tucows Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 28, 2018, naming a privacy service as Respondent. On March 29, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 29, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 3, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 3, 2018.
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 April 4, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 24, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 26, 2018.
The Center appointed Alan L. Limbury as the sole panelist in this matter on May 2, 2018. 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 owns registrations in many countries for the trademark PENTAIR, including United States registration No. 2573714, registered on May 28, 2002. The trademark is used in connection with pumps, filters, and related goods and is widely known.
The Domain Name was registered on January 15, 2018 in the name of the privacy service. It resolves to an "under construction" webpage. In a cease and desist letter dated March 1, 2018, to which there was no response, the Complainant's representative asserted that the Respondent has used the Domain Name to masquerade as several of the Complainant's employees by sending emails to third parties using email addresses derived from the Domain Name. Copies of such emails are annexed to the Complaint.
5. Parties' Contentions
The Domain Name is identical or confusingly similar to the Complainant's PENTAIR trademark.
None of the circumstances set out in paragraph 4(c) of the Policy which may be used by the Respondent to demonstrate that it has rights to or legitimate interests in the Domain Name are present. The Respondent is using the Domain Name to masquerade as at least one of the Complainant's employees in order to scam the Complainant's customers by sending out emails from <pentairs.com> email addresses to obtain wire transfers of money and other financial information from them.
As in Desko GmbH v. Mustafa Mashari, WIPO Case No. D2015-0817, the Respondent registered the Domain Name to provide an email address for use in masquerading as the Complainant's employees, in order to send fraudulent emails to the Complainant's customers – for the purpose of defrauding and taking advantage of those customers – by purporting to act in the name of and under the auspices of the Complainant's employees.
Also as in Desko, the Respondent's use of the Domain Name and email address is calculated to give the appearance that the email belongs to and comes from the Complainant's employees, to give false authenticity to the sham correspondence sent thereunder, designed to confuse the Complainant's unsuspecting customers into providing the Respondent with money and financial information which will allow the Respondent to illegally and fraudulently divert funds and confidential information from its intended recipient (the Complainant) to the Respondent.
Further indications of bad faith are the lack of a reply to the cease and desist letter and the unlikelihood that the Respondent was unaware of the Complainant's PENTAIR mark when registering the Domain Name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, to obtain transfer of the Domain Name, the Complainant must prove the following three elements: (i) the Respondent's Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in the Domain Name; and (iii) the Respondent has registered the Domain Name and is using it in bad faith.
Under paragraph 15(a) of the Rules, "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".
A Respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the Complainant. See Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441.
A. Identical or Confusingly Similar
The Domain Name is virtually identical and is confusingly similar to the Complainant's PENTAIR trademark, since it differs only in the addition of the letter "s" and the inconsequential generic Top-Level Domain ("gTLD") ".com", which may be disregarded. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.
The Complainant has established this element.
B. Rights or Legitimate Interests
The Panel finds that the PENTAIR mark is distinctive and widely known. The Complainant's assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Name on the part of the Respondent. The burden of production therefore shifts to the Respondent to show that it does have rights or legitimate interests in the Domain Name. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753. The Respondent has made no attempt to do so and there is no evidence in the case file to suggest that the Respondent's use of the Domain Name falls within any of the "safe harbours" of paragraph 4(c) of the Policy.
In the circumstances of this case, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Complainant has established this element.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy sets out the conjunctive requirement that the Complainant establish both that the Respondent has registered the Domain Name in bad faith and that the Respondent is using the Domain Name in bad faith. The illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of the Domain Name in bad faith for purposes of paragraph 4(a)(iii) of the Policy are not exclusive.
The emails annexed to the Complaint support the Complainant's assertion that the Respondent registered and has used the Domain Name for the purpose of committing fraud against the Complainant's customers, by deceiving them into believing that the Respondent is an employee of the Complainant making legitimate requests for wire transfers of money in exchange for selling the Complainant's products. Similar circumstances were found to warrant a finding of bad faith registration and use in Desko GmbH v. Mustafa Mashari, WIPO Case No. D2015-0817.
Accordingly the Panel finds that the Respondent has registered and is using the Domain Name in bad faith.
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 <pentairs.com> be transferred to the Complainant.
Alan L. Limbury
Date: May 7, 2018