Indeed, Inc. v. Rina Lay
Claim Number: FA1712001763393
Complainant is Indeed, Inc. (“Complainant”), represented by Rebecca R. McCurry of Pirkey Barber PLLC, Texas, USA. Respondent is Rina Lay (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeed.us.com>, registered with Web4Africa 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 participated in the mandatory CentralNic Mediation, and the mediation process was concluded/terminated.
Complainant submitted a Complaint to the Forum electronically on December 18, 2017; the Forum received payment on December 18, 2017.
On December 19, 2017, Web4Africa Inc. confirmed by e-mail to the Forum that the <indeed.us.com> domain name is registered with Web4Africa Inc. and that Respondent is the current registrant of the name. Web4Africa Inc. has verified that Respondent is bound by the Web4Africa Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On December 19, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 8, 2018 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@indeed.us.com. Also on December 19, 2017, 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 January 15, 2018, 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 to the CDRP 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 Indeed, Inc. provides the world’s largest job site, with over 200 million unique visitors every month from over 60 different countries. Indeed helps companies of all sizes hire employees and helps job seekers find employment opportunities.
Complainant registered the INDEED mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,141,242, registered Sep. 12, 2006) and also owns multiple registrations for INDEED worldwide.
Respondent’s <indeed.us.com> domain name is identical to Complainant’s mark as it incorporates the INDEED mark in its entirety and adds the country code top-level domain (“ccTLD”) “.us” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <indeed.us.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name in connection with a fraudulent website that mimics Complainant’s official website offering online career search and recruitment services. The website prominently features the INDEED mark and design. Further, Respondent, through emails associated with the domain name, fraudulently represents that it is Complainant, informs the customer that they have a past due invoice, asks the customers to “update” their payment details, and presents a button in the email to update the payment details that leads the internet user to Respondent’s look-alike website.
Respondent registered and uses the <indeed.us.com> domain name in bad faith. Respondent has been involved in prior CDRP/UDRP decisions where Panels have found bad faith registration and use against Respondent. Further, Respondent intentionally attempted to attract, for commercial gain, Internet users to the Registrant’s website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s <indeed.us.com> website and associated domain name. Additionally, Respondent is using the <indeed.us.com> domain name for the purpose of extracting money and personal information from innocent job seekers. Finally, Respondent had actual knowledge of Complainant’s rights prior to registering the domain name due to the Complainant’s prior trademark registrations and the fame of the INDEED mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the INDEED mark as demonstrated by its registration of such mark with the USPTO and other registrars worldwide.
Complainant’s rights in the INDEED mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent uses the <indeed.us.com> domain name to address a website that copies Complainant’s website in look and feel. Respondent’s website offers fraudulent online career search and recruitment services. Respondent sends email hosted by <indeed.us.com> to pose as Respondent so that it may defraud the email’s recipients.
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 or 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); 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.”).
The CDRP also requires that Complainant have paricipated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
The at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s registration of the INDEED mark with the USPTO is sufficient to allow the Panel to find that Complainant has rights in a mark under the Policy. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office).
The at-issue domain name consists of Complainant’s entire INDEED trademark appended with the top-level domain names “.us” and “.com”. The slight differences between the domain name and Complainant’s trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel finds that the at-issue <indeed.us.com> domain name is identical to Complainant’s INDEED trademark. See Crocs, Inc. v. [Registrant], FA 1043196 (Forum Sept. 2, 2007) (determining that “the addition of a ccTLD is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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). Absent contrary evidence of Policy ¶4(c) circumstances, or other evidence supporting a finding of Respondent’s having rights or legitimate interests in the domain name, 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.
WHOIS information for <indeed.us.com> identifies the domain name’s registrant as “Rina Lay.” Further, there is no evidence in the record which otherwise suggests that the Respondent is known by the at-issue domain name. Therefore, the Panel concludes for the purposes of Policy ¶ 4(c)(ii) that Respondent is not commonly known by the at-issue domain name. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Moreover, Respondent uses the <indeed.us.com> domain name to pass itself off as Complainant and offer fraudulent career search and recruitment services. Respondent’s use of the at-issue domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The at-issue domain name was registered and used in bad faith. As discussed below, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstances lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4 (a)(iii) of the Policy.
First, Respondent registered and uses the <indeed.us.com> domain name to attract internet users to Respondent’s copycat website for commercial gain by creating a likelihood of confusion with Complainant’s trademark as to the source of the domain name. Using a domain name to pass itself off as Complainant and trade upon Complainant’s goodwill for commercial gain, as does Respondent, demonstrates bad faith under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also, Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also See Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that Respondent's use of <monsantos.com> to misrepresent itself as Complainant and to provide misleading information to the public supported a finding of bad faith).
Next, Complainant shows that Respondent has prior adverse arbitration decisions against it concerning the INDEED trademark. These prior decisions suggest Respondent’s bad faith registration and use of the at-issue domain name under Policy ¶ 4(b)(ii). See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum November 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”).
Additionally and insidiously, Respondent uses its <indeed.us.com> domain name to host and control one or more email addresses to further impersonate Complainant. Complainant uses <indeed.us.com> based email in a phishing scheme to obtain personal and financial information from unsuspecting internet users seeking Complainant’s services who mistakenly believe Respondent’s email originates from Complainant. Using an identical or confusingly similar domain name to phish for personal or financial information indicates bad faith registration and use of the <indeed.us.com> domain name within the meaning of Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Finally, Respondent registered the <indeed.us.com> domain name with actual knowledge of Complainant’s INDEED trademark. Respondent’s knowledge of Complainant’s mark prior to registering <indeed.us.com> is apparent from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to address a look-alike website which features Complainant’s trademark and offers services in competition with those offered by Complainant. Respondent’s prior knowledge of Complainant’s rights in the INDEED mark further indicates that Respondent registered and used the at-issue domain name in bad faith under 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 Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <indeed.us.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 15, 2018
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