Indeed, Inc. v. Ethan Smith
Claim Number: FA1908001856393
Complainant is Indeed, Inc. (“Complainant”), represented by Justin S. Haddock of Indeed, Inc., Texas, USA. Respondent is Ethan Smith (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeedvacancies.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 9, 2019; the Forum received payment on August 9, 2019.
On August 9, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <indeedvacancies.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 13, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 3, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@indeedvacancies.com. Also on August 13, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 4, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Complainant provides the world’s largest job site, with over 200 million unique visitors every month from over 60 different countries. Complainant has rights in the INDEED mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,141,242, registered Sep. 12, 2006). Respondent’s <indeedvacancies.com>[i] domain name is identical or confusingly similar to Complainant’s INDEED mark. Respondent incorporates Complainant’s mark in its entirety and adds the generic term “vacancies” and “.com” generic top-level domain (“gTLD”).
2. Respondent has no rights or legitimate interests in the <indeedvacancies.com> as Respondent is not commonly known by the domain name.
3. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to perpetrate fraud by sending fake invoices to Complainant’s customers in an attempt to trick them into revealing personal information.
4. Respondent registered and uses the <indeedvacancies.com> domain name in bad faith as Respondent attempts to create a likelihood of confusion with Complainant’s mark. Respondent further attempts to imitate Complainant in order to gather Complainant’s customers’ personal information.
5. Lastly, Respondent had actual knowledge of Complainant’s rights in the INDEED mark prior to registering the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the INDEED mark. Respondent’s domain name is confusingly similar to Complainant’s INDEED mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <indeedvacancies.com> domain name and that Respondent registered and uses the domain name in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the INDEED mark through its registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant has provided the Panel with a copy of its USPTO registration for the INDEED mark (e.g., Reg. No. 3,141,242, registered Sep. 12, 2006). Therefore, Complainant has adequately shown rights in the INDEED mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <indeedvacancies.com> domain name is identical or confusingly similar to Complainant’s INDEED mark. Registration of a domain name that includes a wholly incorporated mark and that adds a generic term and a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). The Respondent incorporates Complainant’s INDEED mark in its domain name entirety and adds the generic term “vacancies” and “.com” gTLD. Therefore, Respondent’s <indeedvacancies.com> domain name is identical or confusingly similar to Complainant’s INDEED mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <indeedvacancies.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues Respondent lacks rights or legitimate interest in the <indeedvacancies.com> domain name as Respondent is not commonly known by the domain name nor has Respondent been given license or consent to use the INDEED mark or register domain names using Complainant’s mark. WHOIS information may be used to determine whether a respondent is commonly known by a domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by a domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the <indeedvacancies.com> domain name lists the registrant as “Ethan Smith” and there is no other evidence to suggest that Respondent was authorized to use the INDEED mark or was commonly known by the <indeedvacancies.com> domain name. Therefore, Respondent is not commonly known by the <indeedvacancies.com> domain name per Policy ¶ 4(c)(ii).
Complainant further argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the <indeedvacancies.com> domain name to perpetrate fraud by sending fake invoices to Complainant’s customers, in an attempt to trick them into revealing personal information. Use of a domain name incorporating the mark of another in an attempt to gather Internet user’s personal information is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“Passing off as a complainant through e-mails is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii).”). Here, Complainant has provided the Panel with screenshots of email communication where Respondent uses the <indeedvacancies.com> domain name to have Internet users provide payment and financial information. Therefore, the Panel holds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <indeedvacancies.com> domain name in bad faith as Respondent attempts to create a likelihood of confusion with Complainant’s INDEED mark. Use of a domain name incorporating the mark of another to create a likelihood of confusion with a complainant’s mark is evidence of bad faith per Policy ¶ 4(b)(iv). See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain). Complainant has provided evidence that Respondent uses the INDEED mark in the <indeedvacancies.com> domain name to create confusion between the source, sponsorship, affiliation, or endorsement of the domain name. Therefore, the Panel holds that Respondent registered and uses the <indeedvacancies.com> domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant further argues that Respondent’s bad faith is demonstrated by its use of the <indeedvacancies.com> domain name to perpetrate fraud. Specifically, Complainant argues that Respondent attempts to imitate Complainant in order to gather customer’s personal information. Use of a domain name incorporating the mark of another to send fraudulent emails in an attempt to obtain personal information is evidence of bad faith per Policy ¶ 4(a)(iii). See United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.”). Complainant has provided the Panel with screenshots of email communication where Respondent uses the <indeedvacancies.com> domain name to have Internet users provide payment and financial information. Therefore, the Panel agrees that Respondent engaged in bad faith per Policy ¶ 4(a)(iii).
Lastly, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the INDEED prior to registration of the <indeedvacancies.com> domain name due to the fame of the INDEED mark. Actual knowledge of Complainant’s rights in the mark prior to registering the <indeedvacancies.com> domain name is adequate to find bad faith under Policy ¶ 4(a)(iii). See Coachella Music Festival, LLC v. ALEXANDER DE ALMEIDA LOPES, FA 1705267 (Forum Jan. 9, 2017) (finding the respondent had actual knowledge of the complainant’s COACHELLA mark when it registered and used the <coachellastuff.com> domain name—and thus did so in bad faith—because the complainant presented adequate evidence that its mark was well-known and famous). The Panel agrees with Complainant that its longstanding use of the INDEED mark is sufficient to show that the INDEED mark is famous and well-known. Respondent’s use of the <indeedvacancies.com> domain name to pass off as the Complainant through emails also is evidence of actual knowledge. Thus, Respondent had actual knowledge of Complainant’s rights in the INDEED mark prior to registration of the <indeedvacancies.com> domain name which constitutes bad faith per Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <indeedvacancies.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 9, 2019
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