Spotify AB v. Olodo Glory / Sutherland
Claim Number: FA2106001951577
Complainant is Spotify AB (“Complainant”), represented by Jacob P. Dini of Perkins Coie LLP, California, USA. Respondent is Olodo Glory / Sutherland (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spotifycareers.com>, registered with NameCheap, Inc..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 17, 2021; the Forum received payment on June 17, 2021.
On June 17, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <spotifycareers.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 June 23, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 13, 2021 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@spotifycareers.com. Also on June 23, 2021, 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 July 14, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Spotify AB, is a leading global audio streaming subscription service.
Complainant has rights in the SPOTIFY mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <spotifycareers.com> domain name is confusingly similar to Complainant’s SPOTIFY mark since it incorporates the mark, simply adding the descriptive term “careers” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <spotifycareers.com> domain name because Respondent is not commonly known by the at-issue domain name and is not authorized or permitted to use Complainant’s SPOTIFY mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent fails to make any active use the domain name. Further, Respondent uses the domain name to impersonate Complainant as part of a fraudulent scheme.
Respondent registered and uses the <spotifycareers.com> domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by impersonating Complainant in a fraudulent e-mail scheme. The <spotifycareers.com> domain also fails to address to an active webpage. Finally, Respondent had actual knowledge of Complainant’s rights in the SPOTIFY mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the SPOTIFY mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the SPOTIFY trademark.
Respondent used the <spotifycareers.com> domain name to perpetrate fraud.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the SPOTIFY mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <spotifycareers.com> domain name contains Complainant’s entire SPOTIFY trademark. Respondent suffixes Complainant’s trademark with the descriptive term “careers” and completes the at-issue domain name by adding the generic top-level domain name “.com” to the trademark laden string. Respondent’s additions to Complainant’s trademark fail to distinguish the <spotifycareers.com> domain name from Complainant’s SPOTIFY mark. Therefore, the Panel concludes that Respondent’s <spotifycareers.com> domain name is confusingly similar to Complainant’s SPOTIFY trademark pursuant to Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Olodo Glory / Sutherland” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <spotifycareers.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <spotifycareers.com> domain name for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”).
Additionally and as further discussed below with regard to Respondent’s bad faith, Respondent uses the at-issue domain name to attempt to pass itself off as Complainant via an imposter website and email originating from its confusingly similar <spotifycareers.com> domain name. Using the at-issue domain name to pass off as Complainant does not indicate a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent uses the at-issue domain name in connection with a phishing scheme. At one point in the near past the at-issue domain name addressed a website that attempted to exploit the goodwill resident in Complainant’s SPOTIFY mark by providing job seekers with information about non-existent jobs supposedly offered Complainant. In that regard, Respondent furthered its charade by posing as Complainant management in email sent from the at-issue domain name to third parties seeking the various imaginary jobs fraudulently posted by Respondent. Respondent’s deceitful and illegal use of the at-issue domain name demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also, CoorsTek, Inc. v. Gwendolyn K Bohn / CoorsTek Inc, FA 1764186 (Forum Feb. 2, 2018) (“Respondent sent email to users seeking employment at Complainant’s business and asked for personal information such as a photo ID. Therefore, the Panel finds Respondent’s emails constitute a phishing scheme and this indicates bad faith registration and use per Policy ¶ 4(a)(iii).”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the SPOTIFY mark when it registered <spotifycareers.com> as a domain name. Respondent’s actual knowledge is evident from Respondent’s use of the domain name to pose as Complainant in an email phishing scheme. Respondent’s registration and use of the <spotifycareers.com> domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spotifycareers.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 15, 2021
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