Indeed, Inc. v. Jason Terry
Claim Number: FA1804001781200
Complainant is Indeed, Inc. (“Complainant”), represented by Rebecca R. McCurry of Pirkey Barber PLLC, Texas, USA. Respondent is Jason Terry (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <account-indeed.com>, registered with Key-Systems GmbH.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 11, 2018; the Forum received payment on April 11, 2018.
On April 13, 2018, Key-Systems GmbH confirmed by e-mail to the Forum that the <account-indeed.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 April 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 3, 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@account-indeed.com. Also on April 13, 2018, 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 May 8 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, Indeed Inc., provides the world’s largest job site to 60 different countries. Complainant uses the INDEED mark to provide and market its products and services. Complainant claims rights in the INDEED mark based upon registration with the United States Patent and Trademark Office (“USPTO”). (e.g. Reg. No. 3,141,242, registered on Sep. 12, 2006). Respondent’s <account-indeed.com> domain name is confusingly similar to Complainant’s INDEED mark as the name incorporates the mark in its entirety, merely adding a hyphen, the descriptive term “account”, and the generic top level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the <account-indeed.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted Respondent permission or license to use the INDEED mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <account-indeed.com> domain name to impersonate Complainant as part of a phishing scheme.
Respondent has registered and used the <account-indeed.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location of a product or service on Respondent’s website or location. In addition, Complainant sent a cease and desist letter to Respondent, to which Respondent failed to respond or comply. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the INDEED mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <account-indeed.com> domain name.
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 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.”).
Complainant claims rights in the INDEED mark based upon its registration with the USPTO (e.g. Reg. No. 3,141,242, registered on Sep. 12, 2006). Registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). The Panel finds that Complainant has rights in the INDEED mark per Policy ¶ 4(a)(i).
Complainant asserts that the <account-indeed.com> domain name is confusingly similar to the INDEED mark as it contains the mark in its entirety, adding a hyphen, the descriptive term “account”, as well as the gTLD “.com.” Panels have consistently found that slight differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark do not distinguish the domain name from the mark incorporated therein. See Traditional Medicinals, Inc. v. Flippa Chick, FA1006001328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.”); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug, 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Similarly, the addition of a gTLD is irrelevant in determining whether the disputed domain name is confusingly similar. See 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). The Panel finds that the <account-indeed.com> domain name does not contain changes that would sufficiently distinguish it from the INDEED mark and the domain name is confusingly similar to Complaint’s mark.
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent has no rights or legitimate interests in <account-indeed.com> as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the INDEED mark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). The WHOIS information of record identifies Respondent as “Jason Terry.” Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Complainant argues that Respondent’s lack of rights and legitimate interests is demonstrated by its attempts to impersonate Complainant as part of a phishing scheme. Use of a domain name to impersonate a complainant and acquire personal and business information from the complainant’s customers is not a use indicative of rights or legitimate interests in the name per Policy ¶ 4(c)(i) or (iii). See NIKE, Inc. v. Alireza Zare, Case No. 1731606 (Forum June 13, 2017) (finding no bona fide offering of goods or services or legitimate noncommercial use where respondent used <nike.eu.com> to “perpetrate a phishing scheme whereby <nike.eu.com> website visitors, who may also be Complainant’s customers, are deceived into revealing proprietary personal data such as email addresses and account passwords.”) Here, Complainant claims Respondent reproduces Complainant’s website, prominently featuring Complainant’s INDEED marks and logos in an attempt to acquire Complainant’s customers’ personal and business information. The Panel finds, based on Respondent’s use of the domain name, that Respondent lacks rights and legitimate interests with respect to the domain name per Policy ¶¶ 4(c)(i) and (iii).
Complainant has proved this element.
Complainant argues that Respondent has registered and uses the <account-indeed.com> domain name in bad faith because Respondent is attempting to impersonate Complainant to conduct a phishing scheme. Use of a domain name to phish for personal information in fraudulent emails may constitute bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also See NIKE, Inc. v. Alireza Zare, Case No. 1731606 (Forum June 13, 2017) (finding bad faith registration and use where respondent registered a domain that was identical to complainant’s NIKE trademark and used the domain to pass itself off as complainant for the purpose of conducting a phishing scheme that targeted internet users and tricked them into giving up proprietary information to respondent). Here, Complainant claims Respondent reproduces Complainant’s website, prominently featuring Complainant’s INDEED marks and logos in attempt to acquire Complainant’s customers’ personal and business information. The Panel finds that Respondent registered and uses the disputed domain name in bad faith.
Complainant argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. Actual knowledge of a complainant’s rights in a mark may be proven through a totality of circumstances surrounding the registration of the disputed domain name. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”). Complainant asserts, given Respondent’s attempt to impersonate Complainant’s website and the use of the famous INDEED mark incorporated into the disputed domain name, that Respondent had actual knowledge of Complainant’s INDEED mark. The Panel finds that Respondent had actual knowledge of Complainant’s rights in the INDEED mark when it registered the <account-indeed.com> domain name and Respondent registered and used the domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <account-indeed.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: May 14, 2018
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