TrueBlue, Inc. v. Diane Rogers
Claim Number: FA2108001961709
Complainant is TrueBlue, Inc. (“Complainant”), represented by Christian Marcelo of Perkins Coie LLP, California, USA. Respondent is Diane Rogers (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trueblueusa.co>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 30, 2021; the Forum received payment on August 30, 2021.
On August 31, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <trueblueusa.co> 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 September 7, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 27, 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@trueblueusa.co. Also on September 7, 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 September 29, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it operates a recruiting, human resources, and business management company. Complainant began in 1989 as a single Labor Ready, Inc., branch office in Kent, Washington. Those early branches became the cornerstone for today’s company. Providing a talented workforce continues to be the foundation of the organization’s business. Complainant offers numerous services in the fields of recruiting, human resources, and related business management services and software. Complainant is a leading provider of specialized workforce solutions, helping clients improve growth and performance by providing staffing, workforce management, and recruitment process outsourcing solutions. In 2020 alone, Complainant connected 490,000 people to work. Complainant offers its services, in part, through its website located at <www.trueblue.com>. Complainant has rights in the TRUEBLUE mark through its registration in the United States in 2008.
Complainant alleges that the disputed domain name is identical or confusingly similar to its TRUEBLUE mark, as it incorporates the mark in its entirety and merely adds the geographic term “USA” and the “.co” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user nor licensee of the TRUEBLUE mark. Additionally, Respondent does not use the disputed domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass itself off as Complainant in furtherance of a phishing scheme. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent also registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to pass itself off as Complainant to operate a phishing scheme, which is disruptive of Complainant’s business and may lead to commercial gain for Respondent. Additionally, Respondent registered the disputed domain with actual knowledge of Complainant’s rights in the TRUEBLUE mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark TRUBLUES and uses it to provide human resource management services.
Complainant’s rights in its mark date back to at least 2008.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website mimics Complainant’s legitimate website, displays Complainant’s mark and logo, and is used to phish for user’s personal information.
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 disputed domain name incorporates Complainants mark in its entirety, merely adding the geographic term “USA” and the “.co” gTLD. Previous Panels have held that such changes may not negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Avaya Inc. v. Evelyn Dayda / Avaya Unlimited Sources LLC, FA 1611255 (Forum May 4, 2015) (finding that as “the ‘usa’ portion of the disputed domain name is a generic geographic term, the internet user will assume that the domain name deals with the activities of Complainant in the USA and that it will lead to a website dealing with that subject. The domain name is therefore confusingly similar to the AVAYA mark and the Panel so finds.”). The Panel therefore finds that the <trueblueusa.co> domain name is confusingly similar to Complainant’s TRUEBLUE mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the relevant WHOIS information identifies “Diane Rogers” as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to attempt to pass itself off as Complainant to phish for Internet users’ personal and financial information. Specifically, Complainant presents evidence showing that the resolving website is a copy of Complainant’s official website and displays Complainant’s trademark and logo; under the guise of acting as Complainant, the resolving website purports to list job offers and requests consumer’s personal information, including their social security numbers and images of their driver’s licenses. Such use may not qualify as a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant and attempt to phish for Internet users personal and financial information. Such use may demonstrate bad faith disruption and attraction to commercial gain under Policy ¶¶ 4(b)(iii) and (iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). Therefore, the Panel finds bad faith disruption and attraction to commercial gain under Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website mimics Complainant’s legitimate website and displays Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <trueblueusa.co> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 29, 2021
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