LinkedIn Corporation v. Sebastian Miller / Fortune Business intelligence group inc.
Claim Number: FA2206002000724
Complainant is LinkedIn Corporation (“Complainant”), represented by Douglas M Isenberg of The GigaLaw Firm, Douglas M Isenberg, Attorney at Law, LLC, Georgia, USA. Respondent is Sebastian Miller / Fortune Business intelligence group inc. (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <salesnavigator.us>, registered with Network Solutions, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 16, 2022; the Forum received payment on June 16, 2022.
On June 21, 2022, Network Solutions, LLC confirmed by e-mail to the Forum that the <salesnavigator.us> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On June 27, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 18, 2022, 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@salesnavigator.us. Also on June 27, 2022, 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 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 operates the largest professional network on the Internet.
Complainant holds a registration for the SALESNAVIGATOR trademark, which is on file with the Swiss Federal Institute of Intellectual Property (“SFIIP”) as Registry No. 634419, registered September 25, 2012.
Respondent registered the domain name <salesnavigator.us> on May 4, 2022.
The domain name is virtually identical and confusingly similar to Complainant’s SALESNAVIGATOR mark.
Respondent does not own a trademark or service mark which is identical to the domain name.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use the SALESNAVIGATOR mark.
Respondent does not use the domain name for either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Instead, the disputed domain name resolves to a website offering “direct marketing services” in competition with Complainant’s business.
Respondent’s use of the domain name diverts Complainant’s customers for Respondent’s commercial gain.
Respondent has no rights to or legitimate interests in the domain name.
Respondent’s use of the domain name disrupts Complainant’s business.
Respondent registered the domain name with knowledge of Complainant’s rights in the SALESNAVIGATOR mark.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical and confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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 and 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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
By reason of its registration of the SALESNAVIGATOR trademark with a national trademark authority, the SFIIP, Complainant has demonstrated that it has rights in that mark sufficient to establish that it has standing to pursue its Complaint against Respondent under the usTLD Policy. See, for example, Teleflex Incorporated v. Leisa Idalski, FA 1794131 (Forum July 31, 2018):
Registration of a mark with governmental trademark agencies is sufficient to establish rights in that mark for the purposes of Policy ¶ 4(a)(i).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <salesnavigator.us> domain name is substantively identical and confusingly similar to Complainant’s trademark SALESNAVIGATOR. The domain name incorporates the mark in its entirety, with only the addition of the country code Top Level Domain (“ccTLD”) “.us.” This alteration of the mark, made in forming the domain name, does not save it from the realm of identity or confusing similarity under the standards of the Policy. See, for example, Blue Cross and Blue Shield Assoc. v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018):
A TLD (whether a g[for generic]TLD, … or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.
See also Farouk Systems, Inc. v. Jack King / SLB, FA 1618704 (Forum June 19, 2015):
The ccTLD “.us” designation is inconsequential to a Policy ¶ 4(a)(i) analysis.
Further see MIGROS-GENOSSENSCHAFTS-BUND v. Tayfun yalcin, FA 1621184 (Forum July 8, 2015):
In light of the fact that Respondent’s … domain name incorporates Complainant’s whole mark and merely adds the ccTLD “.us,” the Panel … finds … the … domain name is identical to Complainant’s MIGROS mark.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the <salesnavigator.us> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See, for example, Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c)(i)-(iv), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the domain name that are cognizable under the Policy.
We begin by noting that there is nothing in the record before us suggesting that Respondent is the owner or beneficiary of a trademark or service mark that is identical to the <salesnavigator.us> domain name. We conclude, therefore, that Respondent has no claim of rights to or legitimate interests in the domain name under Policy ¶ 4(c)(i). See, for example, Pepsico, Inc. v. Becky, FA 117014 (Forum September 3, 2002), finding that, because there was no evidence showing that a respondent owned a trademark or service mark reflecting a specific domain name, it could not lay claim to rights to or legitimate interests in that domain name under Policy ¶ 4(c)(i).
We next observe that Complainant asserts, without objection from Respondent, that the <salesnavigator.us> domain name resolves to a webpage offering goods and services sold in competition with the business of Complainant. This employment of the domain name is not a bona fide offering of goods or services such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in Policy ¶ 4(c)(ii). See, for example, Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum February 3, 2016) (finding that a Respondent’s employment of a domain name that was confusingly similar to the mark of a UDRP Complainant to market business services similar to those offered by that Complainant, and in competition with it, was not a bona fide offering of goods or services within the contemplation of Policy ¶ 4(c)(ii).
Complainant further contends, again without objection from Respondent, that Respondent has not been commonly known by the <salesnavigator.us> domain name and that Complainant has not licensed or otherwise authorized Respondent to use the SALESNAVIGATOR mark. In this connection, we note that the pertinent WHOIS information reflects that Respondent is identified only as “Sebastian Miller / Fortune Business intelligence group inc.,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name within the meaning of Policy ¶ 4(c)(iii) and so cannot lay claim to rights to or legitimate interests in the domain name under that provision of the Policy. See, for example, Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent had no rights to or legitimate interests in a disputed domain name where a UDRP complainant asserted that it did not authorize a respondent to use its mark and the relevant WHOIS information indicated that that respondent was not commonly known by the domain name). See also PTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum November 13, 2018) (finding no rights to or legitimate interests in the <sothebys.email> domain name where the pertinent WHOIS record identified a respondent only as “Tony Yeh shiun.”
Complainant’s last contention under this heading is that Respondent’s use of the <salesnavigator.us> domain name, as described above, was undertaken for Respondent’s commercial gain. As with all other allegations of the Complaint, Respondent does not contest this. We therefore conclude that Respondent cannot find shelter under Policy ¶ 4(c)(iv), which provides that rights to or legitimate interests in a domain name might be demonstrated by a showing that Respondent is making a legitimate noncommercial or fair use of its domain name, without intent to acquire commercial gain. See, for example, Coryn Group, Inc. v. Media Insight, FA 198959 (Forum December 5, 2003) (finding that a respondent was not employing contested domain names for a legitimate noncommercial or fair use where that respondent used the domain names to divert Internet users to a website offering services in competition with those of a UDRP complainant under its marks).
For all of these reasons, the panel finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(iii).
We have found that Respondent’s challenged <salesnavigator.us> domain name resolves to a webpage offering commercial services in competition with the business of Complainant and for Respondent’s financial gain. By so conducting itself, Respondent has taken on the mantle of Complainant’s illicit commercial competitor. Respondent must thus be found to be disrupting Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (finding that a respondent’s use of a disputed domain name to offer loan services in competition with the business of a UDRP complainant thus disrupted that complainant’s business, which constituted bad faith in the registration and use of the domain name under Policy ¶ 4(b)(iii)). See also DatingDirect.com Ltd. v. Aston, FA 593977 (Forum December 28, 2005):
Respondent is appropriating Complainant’s mark [in a confusingly similar domain name] to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use [of that domain name] pursuant to Policy ¶ 4(b)(iii).
We are also persuaded by the evidence before us that Respondent knew of Complainant and its rights in the SALESNAVIGATOR mark when it registered the offending <salesnavigator.us> domain name. This further illustrates Respondent’s bad faith in registering it. See, for example, Univision Comm. Inc. v. Norte, FA 1000079 (Forum August 16, 2007) (rejecting a UDRP respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent knew of a complainant's rights in a mark when registering the confusingly similar domain name).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the usTLD Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the domain name <salesnavigator.us> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 27, 2022
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