RH-Interactive Jobfinance v. Mooburi
Services
Claim Number: FA0212000137041
PARTIES
Complainant
is RH-Interactive Jobfinance, Paris,
FRANCE (“Complainant”) represented by Raphael
Richard, of CVFM. Respondent is Mooburi Services, Bangkok, THAILAND (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <jobfinance.com>,
registered with Iholdings.com, Inc. d/b/a Dotregister.com.
PANEL
On
January 14, 2003, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the Forum appointed James P. Buchele as Panelist.
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.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on December 11, 2002; the Forum received a hard copy of the
Complaint on December 3, 2002.
On
December 4, 2002, Iholdings.com, Inc.
d/b/a Dotregister.com confirmed by e-mail to the Forum that the domain
name <jobfinance.com> is
registered with Iholdings.com, Inc.
d/b/a Dotregister.com and that Respondent is the current registrant of
the name. Iholdings.com, Inc. d/b/a Dotregister.com has verified that
Respondent is bound by the Iholdings.com,
Inc. d/b/a Dotregister.com registration agreement and has thereby agreed
to resolve domain-name disputes brought by third parties in accordance with
ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On
December 17, 2002, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of January 6, 2002 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent via e-mail, post and fax, to all entities and
persons listed on Respondent’s registration as technical, administrative and
billing contacts, and to postmaster@jobfinance.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
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.” 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.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
1. The <jobfinance.com>
domain name is identical to Complainant's JOBFINANCE registered mark.
2. Respondent has no rights or legitimate
interests in the <jobfinance.com> domain name.
3. Respondent registered and used the <jobfinance.com> domain name in
bad faith.
B.
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant holds a trademark registration
in France (Reg. No. 3,034,820) for JOBFINANCE issued in 2000. Complainant uses the mark in connection with
advertising, business management, education, training, entertainment, and a
variety of online services. Complainant
is one of France’s major job recruitment services specializing in the finance
area. Complainant provides information
about available offerings in the financial job market, and also acts as a
directory of bank websites. Complainant
currently uses the domain name <jobfinance.fr> to host its online
services.
Complainant registered and began use of
the <jobfinance.com> domain name on January 28, 2000. Complainant inadvertently lost the renewal
notice and was not able to renew the domain name registration before Respondent
registered it.
Respondent registered the disputed domain
name on March 8, 2002. Respondent is
using the disputed domain name in order to divert Internet users to its own
“Ultimate Web Resources” search engine.
DISCUSSION
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.”
In view
of Respondent's failure to submit a Response, the Panel shall decide this
administrative proceeding on the basis of the Complainant's undisputed
representations pursuant to paragraphs 5(e), 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) of the Policy requires that the 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.
Complainant has established that it has
rights in the JOBFINANCE mark through the French trademark registration.
Respondent’s <jobfinance.com>
domain name is identical to Complainant’s mark because it incorporates
Complainant’s entire mark and merely adds the generic top-level domain
“.com.” The addition of the generic
top-level domain “.com” does not create any distinct characteristics because
top-level domains are a required feature of every domain name. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000)
(finding <pomellato.com> identical to Complainant’s mark because the
generic top-level domain (gTLD) “.com” after the name POMELLATO is not
relevant); see also Rollerblade,
Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the
top-level of the domain name such as “.net” or “.com” does not affect the
domain name for the purpose of determining whether it is identical or
confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has
been satisfied.
Respondent has failed to come forward
with a Response. Therefore, the Panel
is permitted to make reasonable inferences in favor of Complainant and accept
Complainant’s allegations as true. See Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a
presumption that Complainant’s allegations are true unless clearly contradicted
by the evidence); see also Talk
City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence
of a response, it is appropriate to accept as true all allegations of the
Complaint”).
Furthermore, based on Respondent’s
failure to respond, it is presumed that Respondent lacks all rights and
legitimate interests in the <jobfinance.com> domain name. See Do The Hustle, LLC v. Tropic
Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant
asserts that Respondent has no rights or legitimate interests in respect of the
domain, the burden shifts to Respondent to provide credible evidence that
substantiates its claim of rights and legitimate interests in the domain name);
see also Geocities v.
Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has
no rights or legitimate interest in the domain name because Respondent never
submitted a Response nor provided the Panel with evidence to suggest
otherwise).
Before Respondent began use of the
disputed domain name, Complainant held the registration and used <jobfinance.com>
for its services. Complainant’s prior
registration of the domain name, coupled with Respondent’s failure to respond
in this dispute, is evidence that Respondent has no rights or legitimate
interests in the domain name pursuant to Policy ¶ 4(a)(ii). See Am. Anti-Vivisection Soc’y v.
“Infa dot Net” Web Serv., FA
95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s prior
registration of the same domain name is a factor in considering Respondent’s
rights or legitimate interest in the domain name).
Furthermore,
Respondent is using the disputed domain name in order to divert Internet users
to its “Ultimate Web Resources” website.
Capitalizing on Complainant’s mark to divert Internet users to an
unrelated website is not a use connected with a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or
fair use pursuant to Policy ¶ 4(c)(iii).
See Vapor Blast Mfg. Co. v. R & S Tech.,
Inc., FA 96577 (Nat.
Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the
domain name to confuse and divert Internet traffic is not a legitimate use of
the domain name); see also Am.
Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21,
2000) (finding that use of Complainant’s mark “as a portal to suck surfers into
a site sponsored by Respondent hardly seems legitimate”).
There is no evidence on record that
Respondent is commonly known by any name other than “Mooburi Services” or
“Ultimate Web Resources.” Respondent
does not refer to JOB FINANCE or <jobfinance.com> on its website,
nor has it submitted any evidence that establishes it is commonly known as JOB
FINANCE or <jobfinance.com>.
Given these facts, the Panel finds that Respondent has no rights or
legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)(ii). See Gallup Inc. v. Amish Country Store, FA
96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have
rights in a domain name when Respondent is not known by the mark); see also
Hartford Fire Ins. Co. v. Webdeal.com,
Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has
no rights or legitimate interests in domain names because it is not commonly
known by Complainant’s marks and Respondent has not used the domain names in
connection with a bona fide offering of goods and services or for a legitimate
noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Paragraph 4(b) enumerates four situations
that give rise to evidence of bad faith.
These four situations are not meant to be exclusive factors when
determining whether or not a Respondent registered a domain name in bad
faith. The Panel also has the
discretion to look at the totality of circumstances. See Channel Tunnel
Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000) (“[J]ust because
Respondent’s conduct does not fall within the ‘particular’ circumstances set
out in ¶4(b) of the Policy, is not conclusive that the Euro-tunnel.com domain
name in issue was registered and is being used in bad faith”); see also Digi
Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining
that Policy paragraph 4(b) sets forth certain circumstances, without
limitation, that shall be evidence of registration and use of a domain name in
bad faith).
Complainant previously held the
registration for <jobfinance.com> and used the domain name in
connection with its business. Respondent registered the domain name immediately
after Complainant failed to timely renew the domain name registration. It can be inferred from this behavior that
Respondent had actual knowledge of Complainant’s use of the domain name and
rights in the JOB FINANCE mark.
Furthermore, registration of a domain name immediately after
Complainant’s registration lapsed gives rise to an inference of registration in
bad faith pursuant to Policy ¶ 4(a)(iii).
See InTest Corp. v.
Servicepoint, FA 95291 (Nat. Arb. Forum Aug. 30, 2000) (finding that where
the domain name has been previously used by Complainant, subsequent
registration of the domain name by anyone else indicates bad faith, absent
evidence to the contrary); see also BAA
plc v. Spektrum Media Inc., D2000-1179 (WIPO Oct. 17, 2000) (finding bad
faith where Respondent took advantage of Complainant’s failure to renew a
domain name).
Respondent is using the <jobfinance.com>
domain name to divert Internet users to its search engine “Ultimate Web
Resources.” Since Respondent generates
revenues from the web traffic it diverts to this website it is using the
disputed domain name to create a likelihood of confusion for commercial gain
which is evidence of registration and use in bad faith pursuant to Policy ¶
4(b)(iv). See Kmart v. Kahn, FA
127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from
its diversionary use of Complainant's mark when the domain name resolves to
commercial websites and Respondent fails to contest the Complaint, it may be
concluded that Respondent is using the domain name in bad faith pursuant to
Policy ¶ 4(b)(iv)); see also Drs.
Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where Respondent directed Internet users seeking
Complainant’s site to its own website for commercial gain).
The Panel find that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
shall be hereby GRANTED.
Accordingly, it is Ordered that the
domain name <jobfinance.com> be
TRANSFERRED from Respondent to Complainant.
James P. Buchele, Panelist
Dated: January 16, 2003
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