Human Capital Management Solutions, Inc. d/b/a Hirewell v. Stephanie Cavoto / 20/20 Foresight
Claim Number: FA2007001903043
Complainant is Human Capital Management Solutions, Inc. d/b/a Hirewell ("Complainant"), represented by Michelle Bolos of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Stephanie Cavoto / 20/20 Foresight ("Respondent"), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hirewellrealestate.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 6, 2020; the Forum received payment on July 6, 2020.
On July 7, 2020, GoDaddy.com, LLC confirmed by email to the Forum that the <hirewellrealestate.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 July 9, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 29, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@hirewellrealestate.com. Also on July 9, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 August 3, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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
Complainant is a Chicago-based recruiting and staffing firm that provides services to employers and candidates in real estate, technology, and other fields. Complainant has used the HIREWELL mark in connection with these services since at least 2012. Complainant owns various trademark registrations for the HIREWELL mark, including at least one U.S. registration for the mark in standard character form.
Respondent is employed by or associated with a competing recruiting firm that is also based in Chicago. Respondent registered the disputed domain name <hirewellrealestate.com> using a privacy registration service in January 2020. Complainant asserts that Respondent is using the disputed domain name to impersonate Complainant in order to divert business to Respondent and due to unhappiness with the fact that a former employee of Respondent is now employed by Complainant. Complainant states further that Respondent has used the domain name and a name similar to that of one of Complainant's employees to impersonate that employee in email messages sent to Complainant's customers, in an attempt to funnel their business to Respondent. In addition, shortly before the Complaint was filed, Respondent launched a website at the disputed domain name for an entity called "Hirewell Real Estate Recruiting," using the same color scheme as that used on Complainant's website. Complainant notes that the members of the "leadership team" depicted on the website are actually employees of Respondent, and asserts that the website is part of the same scheme to divert customers to Respondent.
Complainant contends on the above grounds that the disputed domain name <hirewellrealestate.com> is confusingly similar to its HIREWELL mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <hirewellrealestate.com> incorporates Complainant's registered HIREWELL trademark, adding the generic term "real estate" (omitting the space) and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Human Capital Management Solutions, Inc. d/b/a Hirewell v. Nayer khan / IT Co., FA 1880125 (Forum Feb. 23, 2020) (finding <hirewellassociates.com> confusingly similar to HIREWELL); Margaritaville Enterprises, LLC v. David Hurst, FA 1744640 (Forum Sept. 25, 2017) (finding <margaritavillerealestate.com> confusingly similar to MARGARITAVILLE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. It was registered by a direct competitor of Complainant using a privacy registration service, and appears to have been used to impersonate Complainant in order to divert business to Respondent. Such conduct does not give rise to rights or legitimate interests under the Policy. See, e.g., Human Capital Management Solutions, Inc. d/b/a Hirewell v. Nayer khan / IT Co., supra (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name incorporating the name and service mark of a direct competitor. Complainant alleges and has presented evidence that the domain name has been used to impersonate an employee of Complainant and to host a website that uses Complainant's mark and otherwise mimics Complainant’s site, for the apparent purpose of diverting Complainant's customers to Respondent. Respondent has failed to come forward to dispute these allegations.
Respondent's conduct is indicative of bad faith registration and use under the provisions of the Policy cited above. See, e.g., Human Capital Management Solutions, Inc. d/b/a Hirewell v. Nayer khan / IT Co., supra (finding bad faith in similar circumstances). The Panel further notes that Respondent has previously been found, in an otherwise unrelated proceeding under the Policy, to have registered a domain name incorporating a different competitor's mark in bad faith. See Jones Lang LaSalle IP, Inc. v. Stephanie Cavoto, 20/20 Foresight Services, D2019-0521 (WIPO May 2, 2019) (ordering transfer of <jll-hr.com>).
The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hirewellrealestate.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 8, 2020
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