Integrity Support Services, Inc. doing business as Employment Screening Resources v. Steven Marry / Kayla Dennis / PlusOptions
Claim Number: FA2110001968882
Complainant is Integrity Support Services, Inc. doing business as Employment Screening Resources (“Complainant”), represented by Charles G. Smith of Law Offices of Charles G. Smith, APC, California, USA. Respondent is Steven Marry / Kayla Dennis / PlusOptions (“Respondent”), West Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <employmentscreeningresources.org> and <esrchecks.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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 13, 2021; the Forum received payment on October 13, 2021.
On October 14, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <employmentscreeningresources.org> and <esrchecks.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 October 19, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 8, 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@employmentscreeningresources.org, postmaster@esrchecks.com. Also on October 19, 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 November 18, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 names be transferred from Respondent to Complainant.
Alternatively, if the Panel concludes that the two domain names must be treated separately as belonging to two unconnected registrants, Complainant respectfully requests that the Panel adjudicate the claim as to the domain name <employmentscreeningresources.org> and dismiss the claim as to the domain name <esrchecks.com> without prejudice, allowing Complaint to file a subsequent claim as to <esrchecks.com>.
The disputed domain names are not owned by the one party. Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Nevertheless, Complainant has alleged that the domain names are effectively controlled by a single person or entity, operating under different aliases.
The approach taken to this issue by the majority of UDRP panelists is to allow a single administrative proceeding in respect of several domain names not commonly held if there is reasonable evidence of a claim to actual control by one person or entity. In this case that common control is said to be shown by the identity of the resolving websites and their given addresses. Further, the Panel notes that the domain names were registered less than a week apart during September 2021.
The Panel considers that there is adequate evidence of Complainant’s assertion of a single controlling entity and so allows these proceedings to continue against the named respondents, hereinafter referring to them together as “Respondent”.
A. Complainant
Complainant asserts trademark rights in EMPLOYMENT SCREENING RESOURCES and ESR. Complainant holds national registrations for those trademarks. Complainant submits that the domain names are confusingly similar to its trademarks.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. It states that Respondent uses the disputed domain names in connection with a fake job posting in order to collect personal data.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith having targeted Complainant’s business and its trademarks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant owns United States Patent and Trademark Office (“USPTO”) Reg. No. 4,282,852, for the mark, EMPLOYMENT SCREENING RESOURCES and Reg. No. 4,282,848, for ESR, both registered January 29, 2013;
2. the disputed domain names were registered during September 2021 and resolve to identical websites mimicking Complainant’s site and purporting to offer employment opportunities ; and
3. there is no association between the parties and Complainant has not authorized Respondent to use its trademarks or register any domain name incorporating its trademarks.
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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant therefore has rights since it provides proof of its registrations of the trademarks with the USPTO, a national trademark authority.
For the purposes of comparison of the disputed domain names with the trademark, the gTLDs “.com” and “.org” can be disregarded. Complainant submits that the domain names are confusingly similar to the (respective) trademarks but the Panel finds <employmentscreeningresources.org> to be identical to EMPLOYMENT SCREENING RESOURCES for the purposes of the Policy.
The comparison of the <esrchecks.com> domain with the ESR mark is less easy. The word “check(s)” is descriptive of services provided by Complainant under the trademark but, at the same time, the trademark does not really stand out in the composite expression “esrchecks” unless one was already familiar with it. Identifying the distinctive part of the expression – likely to cause confusion – is not quite so clear. Further, albeit that the USPTO registration of ESR is for a stylized mark which includes a “tick” or “check” graphic element, the conceptual similarity of a fanciful mark with its literal or near-literal equivalent domain name has not always been analyzed the same way by UDRP panelists. Nevertheless, on this occasion and in the absence of any reasoned argument by Respondent the Panel finds that the <esrchecks.com> domain is confusingly similar to the ESR mark since it takes the trademark as a whole and makes non-distinctive additions to it.
The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests. See, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
The names of the domain name holders do not provide any indication that Respondent might be commonly known by either domain name. There is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties and Respondent has no authority to use the trademarks. The domain names resolve to websites intended to create the impression of being sites maintained by Complainant. Those sites present bogus employment opportunities and solicit unsuspecting job applicants to provide personal data such as full name, birth date, social security number and driver’s license details. Cleary such use is in bad faith and does nothing to create rights or legitimate interests in the disputed domain names (see, for example, Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) refusing rights and legitimate interests where the disputed domain name “resolves to a website that Respondent has designed to mimic Complainant’s own in an attempt to pass itself off as Complainant”); Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”)).
The onus shifts to Respondent and, in the absence of a Response, Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain names were registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website 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 the respondent’s website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s actions fall under paragraph 4(b)(iv) above. The Panel has already found confusing similarity. The resolving websites exists for commercial gain in some form or another. In terms of the Policy, the Panel finds that Respondent has intentionally used the disputed domain names to attract, for commercial gain, internet users to its websites by creating a likelihood of confusion with as to the source, sponsorship, affiliation, or endorsement of those websites (see, for example, 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)”); 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.”).
Panel finds that Complainant has satisfied the third and final element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <employmentscreeningresources.org> and <esrchecks.com> domain names be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: November 22, 2021
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