SnagAJob.com, Inc. v. MuscariHoldingLimited c/o Domain Admin
Claim Number: FA1008001343645
Complainant is SnagAJob.com, Inc. (“Complainant”), of Glen Allen, VA, 23060, USA represented by CitizenHawk, Inc., California, USA. Respondent is MuscariHoldingLimited c/o Domain Admin (“Respondent”), of Limassol, Cyprus represented by Maria Bergsten, Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwsnagajob.com>, registered with FABULOUS.COM PTY LTD.
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.
James Bridgeman as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 26, 2010; the National Arbitration Forum received payment on August 27, 2010.
On August 27, 2010, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the disputed domain name <wwwsnagajob.com> is registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant.
FABULOUS.COM PTY LTD. has verified that Respondent is bound by the FABULOUS.COM PTY LTD. 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 August 27, 2010, the National Arbitration Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 16, 2010 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@wwwsnagajob.com. Also on August 27, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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.
A timely Response was received and determined to be complete on September 16, 2010.
On October 1, 2010, pursuant to Complainant's request to have the dispute decided by a 1-member Panel, the National Arbitration Forum appointed James Bridgeman as Panelist.
Complainant requests that the disputed domain name <wwwsnagajob.com>, be transferred from Respondent to Complainant.
A. Complainant
Complainant submits that it was founded in 1999 and operates a job search engine and job search resource specializing in hourly employment.
Complainant submits that it is the owner of the domain name <snagajob.com> and the website to which it resolves is the largest online job board dedicated solely to hourly employment. Complainant posts jobs from the following industries: retail, hospitality, health care, and various service professions and lists 7-Eleven, Kohl's, Macy's, T-Mobile, Verizon, Pizza Hut, and Boston Market among its employer clients.
Within ten years of commencing business, with significant refinancing for expansion in 2006, Complainant has proven itself to be an innovative industry leader and has received significant recognition and awards as a mark of its success with an extensive list of registered job seekers and blue chip clientele, Complainant claims that it is continuing to grow at an unprecedented rate.
Complainant claims that it advertises more than 100,000 available job positions at any one time and maintains a database of over 20 million registered job seekers. Complainant also receives on average up to 130 million annual job seeker-generated searches as well as more than 5 million monthly unique visitors. Complainant's headquarters include a 35,000 square foot complex located in Richmond, Virginia.
Complainant claims to have spent millions of dollars in advertisement and promotion of the SNAGAJOB.COM marks on the Internet through the website to which Complainant’s <snagajob.com> domain name resolves. Based on its above-listed U.S. Federal Trademark registrations and extensive use of the SNAGAJOB.COM trademark, Complainant owns the exclusive right to use the SNAGAJOB.COM marks in connection with online job search engine operations.
Complainant relies in this Complaint on its rights in the U.S. Federal Trademark registrations for its SNAGAJOB.COM marks, listed below, citing United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202 ("Panels have long recognized Complainant's registration of a mark with a trademark authority is sufficient to confer rights in the mark pursuant to Policy ¶ 4(a)(i)").
Complainant submits that when making a comparison between the disputed domain name and Complainant’s marks, the gTLD .com extension should be ignored and this Panel should only compare the second-level portion of the disputed domain name with Complainant's marks: citing Rollerblade, Inc. v. McCrady, WIPO Case No. D2000-0429 (finding that the top-level domain, such as ".net" or ".com", does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., NAF Claim No. FA0304000153545 ("[t]he addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.")
Complainant submits that the disputed domain name <wwwsnagajob.com>
is confusingly similar to Complainant's marks because it differs by only a single character from Complainant's marks, or because it differs by only the juxtaposition of two characters when compared to Complainant's marks.
Complainant submits that, simply put, the disputed domain name <wwwsnagajob.com> is a classic example of "typosquatting". The practice of typosquatting is designed to take advantage of Internet users' typographical errors, which means the name must be confusingly similar by design citing Reuters Ltd. v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); Caterpillar Inc. v. Center for Ban on Drugs, NAF Claim No. FA0603000661437 ("the omission of a single letter from Complainant's mark does not adequately distinguish the Disputed Domain Name from the mark"); and Victoria's Secret v. Zuccarini, NAF Claim No. FA0010000095762 (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant's marks).
Complainant submits that Respondent has no rights or legitimate interests in respect of the disputed domain name <wwwsnagajob.com> for the following reasons:
Respondent has not been commonly known by the disputed domain name <wwwsnagajob.com>. Complainant submits that where, as here, "the WHOIS information suggests Respondent is known as" an entity other than the trademark associated with Complainant, and Complainant has not "licensed, authorized, or permitted Respondent to register domain names incorporating Complainant's... mark," a Panel should find that the Respondent is not commonly known by the Disputed Domain Name, citing United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202.
Complainant states that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Neither has Complainant given Respondent permission to use Complainant's marks in a domain name.
Complainant argues that Respondent is using the disputed domain name <wwwsnagajob.com> to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant's business. Complainant further argues that presumably, Respondent receives pay-per-click fees from these linked websites. As such, Respondent is not using the disputed domain name to provide a bona fide offering of goods or services as allowed under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use as allowed under Policy ¶ 4(c)(iii): citing 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent's use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant's competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use); and further cites Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent's website, which is blank but for links to other websites, is not a legitimate use of the domain names).
In support of this argument Complainant refers to screenshots of the website to which the disputed domain name <wwwsnagajob.com> resolves that have been submitted as an annex to the Complaint.
Complainant submits that the earliest date on which Respondent registered the disputed domain name <wwwsnagajob.com> was June 19, 2003, which is significantly after Complainant's registration of SNAGAJOB.COM on April 9, 2000 and refers to WHOIS data for the respective domain name registrations that have been submitted in an annex to the Complaint.
Complainant further submits that the disputed domain name <wwwsnagajob.com> was not registered until June 19, 2003 which was significantly subsequent to Complainant's first use of the SNAGAJOB.COM marks in commerce, its first registration of the SNAGAJOB.COM mark with the USPTO.
Complainant submits that the disputed domain name <wwwsnagajob.com> was registered and is being used in bad faith for the following reasons:
Complainant argues that Respondent has ignored Complainant's attempts to resolve the dispute outside of this administrative proceeding.
Complainant further argues that Respondent's typosquatting behavior is, in and of itself, evidence of bad faith, citing Canadian Tire Corp. v. domain adm'r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent "created 'a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site or location'. . . through Respondent's persistent practice of 'typosquatting'") and Nat'l Ass'n of Prof'l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) ("Typosquatting ... is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.").
Finally Complainant argues that Respondent has caused disputed domain name to resolve to a website that displays content and/or keywords directly related to Complainant's business. This serves as further evidence of bad faith intent because it removes any doubt as to whether or not the misspelling was intentionally designed to improperly capitalize on Complainant's famous marks and its related business. Complainant refers to screenshots of Respondent’s website which have been submitted in an annex to the Complaint.
B. Respondent
Respondent argues that the trademark in which Complainant claims rights consists of a descriptive phrase that was neither invented by nor exclusively associated with, the Complainant. There is no doubt as to what the phrase "snag a job" refers to. The phrase is commonly used in connection with employment and job hunting. The Complainant cannot claim monopoly over a pre-existing descriptive phrase forming part of everyday language. The verb "snag" is defined in the dictionary as "to grab; seize: to snag the last piece of pie." To "snag a job" is to "get the job", "land the job", "bag the job" etc. The phrase consists of dictionary terms and was not invented by the Complainant.
Respondent accepts that Complainant through registration of the descriptive marks may have established rights to pass the threshold test in paragraph 4(a)(i) of the Policy (rights in a mark), these rights are limited.
Respondent argues in particular that, Complainant's alleged reputation is geographically limited to the United States and Complainant’s rights in such a descriptive mark are weak and entitled to limited protection in any event.
Respondent argues that because of the commonplace use of the phrase “snag a job” the domain name does not cause confusion with Complainant’s trademarks. Respondent argues that the phrase "snag a job" is undeniably descriptive, it is immediately associated with employment and job hunting. The phrase may be catchy, but far from fanciful or invented. It is not a phrase in which someone can claim monopoly rights.
Furthermore Respondent argues that the letters "www" are an acronym for World Wide Web and commonly used to denote an Internet presence. Respondent has furnished evidence that a browser search shows that close to 6 MILLION domain names have been registered starting with "www", over 3200 of which spell out “worldwideweb” in full, e.g.< worldwidewebandbeyond.com>, <worldwidewebresearch.com> and <worldwidewebservices.com>.
Addressing the burden of proof, Respondent argues that Complainant bears the burden of proving absence of rights or a legitimate interest . The onus of proof resting on Complainant should it be satisfied by mere repetition of the language of Policy 4(c)(i)-(iii) stated in the negative. Furthermore, a prima facie standard only creates a presumption that will only succeed if uncontested. If Respondent puts forward a plausible case contradicting the prima facie argument, the Panel must decide the issue "on the basis of all of the evidence, with the complainant carrying the ultimate burden of proof…”, citing Jet Marques v. Vertical Axis, Inc WIPO D2006-0250, and Cassava Enterprises Ltd v. Victor Chandler International Limited, WIPO D2004-0753).
Respondent claims to have rights and legitimate interest in the disputed domain name, arguing that the disputed domain name is employed in conjunction with an advertising subscription database, operated by a third party advertising consolidator (Google), to return search results from the database on the basis of Google's perceived understanding of the contextual relationships between the disputed domain name and search terms for which advertisers have paid subscriptions on a performance basis. ("PPC”). Respondent argues that use of a domain for PPC is considered a bona fide offering of goods and services and a legitimate interest under the Policy. Respondent argues that numerous WIPO and NAF decisions confirm the bona fide nature of such use, citing in particular Modern Beauty Supplies Inc. v. MDNH, Inc. c/o Jay Bean, FA0975334 (NAF June 25, 2007) the disputed domain name was used for a landing page to generate click-through advertising revenue and the panel held that: "such a use is a legitimate interest for the purposes of the Policy because the links and advertisements posted on the web page [were] directly related to the generic meaning of the domain name."
Respondent argues that to be illegitimate, the evidence must show that the links on the resolving website advertise the goods and services of competitors who would otherwise not be associated with the terms used: "As long as the domain names have been registered because of their attraction as dictionary words, and not because of their value as trademarks, this business model is permitted under the Policy" citing The Landmark Group v. Digimedia L.P., FA0285459 (NAF August 6, 2004))
Respondent argues that any claim that such use is illegitimate per se is particularly misguided when the domain in question consist of generic or descriptive terms. Such use of generic/descriptive terms does not shift the burden of proof under this element to the respondent: citing FreedomCard, Inc. v. Kim D2001-1320 (WIPO Jan. 20, 2002): "Were the trademark a well-known invented word having no descriptive character, these circumstances [use of generic/descriptive terms as a search portal] would shift the onus to Respondent to demonstrate its rights or legitimate interest in the disputed domain name: Do The Hustle, LLC v. Tropic Web (WIPO Case No. D2000-0624) and the cases there cited. But the mark FREEDOM CARD is a common generic expression in which the Complainant cannot have exclusive rights".
In the recent decision in Charter Communications, Inc. v. CK Ventures Inc. / Charterbitsiness.com, D2010-0228 (WIPO June 25, 2010). the domain name consisted of two common, correctly spelled English words, i.e. "charter" and "business". The panel found that complainant's "Charter Business" mark was neither arbitrary nor highly distinctive and stated that: "Unless there is persuasive evidence that the Domain Name was selected opportunistically to create confusion and exploit Complainant's mark, the Panel would conclude that Respondent has a legitimate interest in using the Domain Name, comprised as it is of descriptive English words, for advertising or other commercial purposes."
Respondent argues that in the present case, the disputed domain name is used to advertise for jobs and job related services and this is an inherently logical use given the disputed domain name itself being the phrase "snag a job" is neither arbitrary nor highly distinctive when used in connection with employment services. It is in fact descriptive. This is not a situation where "snag-a-job" was registered in connection with selling airplanes and the PPC results showed airplane related links as opposed to job related links. Complainant chose to use an inherently descriptive term for a descriptive purpose.
Respondent submits that Complainant cannot now argue that use of the same phrase for a descriptive purpose by others is somehow illegitimate.
Respondent submits that it has a legitimate interest in using the descriptive phrase in a domain name for advertising and other commercial purposes that are consistent with the descriptive nature of the phrase. The Respondent is not targeting Complainant when it uses the descriptive phrase "snag a job" in its descriptive sense.
Respondent holds numerous other job and employment related domain names. Each name is used in a descriptive sense in connection with jobs and employment. An exemplar listing is provided below. These other domain registrations are further evidence of its bona fide use and legitimate interest in the disputed domain name namely: <SearchBestJobOffers.com>;< FindBestJobOffers.com>; <TopJobSearch.de>; <SearchATopJob.com>; <HotJobSeekers.com>; <JobJobJob.net>; <JobLaden.de>; <Kunst-Job.de>;< IronWorkersJob.com>; <OverseasWork.co.uk>.
Respondent refers to paragraph 2.2 of the W1PO Overview WIPO Panel Views on Selected UDRP Questions and submits that the overview indicates that the factors a panel should look for when determining legitimate use include: (1) the status and fame of the mark,(2) whether the respondent has registered other generic names, and (3) what the domain name is used for ("a respondent is likely to have a right to a domain name "apple" if it uses it for a site for apples but not if the site is aimed at selling computers or pornography").
Respondent argues that in the present case, Complainant's asserted mark is weak. It is inherently descriptive and lacks distinctiveness. Even if the mark should have acquired a reputation at the location of the Complainant, there is nothing to support a claim that it Is famous. Famous names are house-hold words.
Further, Respondent states that it has registered several other generic domain names directly related to the employment sector (listed above) and uses these domain names in their generic or descriptive sense.
Respondent also argues that the disputed domain name is used in its descriptive sense and is not used for a purpose unrelated to its inherent meaning or in a manner that is uniquely associated with the Complainant. This is evidence of legitimate interest and lack of bad faith targeting of the Complainant by Respondent. All of these factors support the Respondent. None of them support the Complainant. These factors all show the Respondent's registration and use of the Domain Name is bona fide and legitimate.
Respondent submits that its bona fide use of the disputed domain name predates any notice by Complainant asserting rights and is legitimate in all respects. Complainant claims it made "attempts" to resolve the dispute outside of this administrative proceeding but provides no evidence thereof and Respondent's record do not show that any prior claims had been received. Respondent states that until receipt of the current Complaint, Respondent was unaware of the rights asserted.
Finally, Respondent argues that Complainant has made bald statements about the Complainant, its activities and its efforts to promote its asserted mark and such statements are not acceptable as evidence. Allegations of counsel, even if certified, are not proof (NutriSystem Fresh, Inc. d/b/a NuKitchen v. Kitchen & Bath Source LLC. D2008-1558 (December 4, 2008).
Respondent argues that there is no requirement that Respondent be commonly known by the disputed domain name or conduct business under that name. Respondent has no intention to be known as <wwwsnagajob> and is not using the domain name for that purpose. Policy 4(c)(ii) is a defense to a UDRP claim. The mere allegation that a defense is lacking is not sufficient to establish guilt.
Respondent submits that it does not require authorization or license of Complainant to register a domain name consisting of descriptive or generic terms. Such terms are registered on a first-come-first-served basis. (Jet2.com Limited v. Jet2ski.com. D2007-1884 (WIPO March 20, 2008); Zero Int'l Holding v. Bevonet Sews D200-0161 (WIPO May 12, 2000); "Common words and descriptive terms are legitimately subject to registration as domain names on a 'first-come, first-served' basis.")
Respondent asserts that it is making a "fair" use of the domain name without intent to misleadingly divert consumers that the disputed domain name is used by Respondent as a descriptive search phrase and the results are directly related to that purpose. Respondent argues that such use if fair use under the Policy. (Combined Insurance Group Ltd v. iclicks c/o Michael Mayder, FA01261538 (NAF June 25, 2009).
Finally Respondent argues that this Panel should find that the disputed domain name has been registered and used in a manner entirely consistent with its descriptive meaning, i.e. in connection with advertising for goods and services related to work and employment. Such use is bona fide use and predates notice of this dispute.
On the evidence adduced this Panel finds that Complainant is the registered owner of the following U.S. Federal Trademark Registrations and the domain name <snagajob.com>:
U.S. Reg. No. 2,477,984 SNAGAJOB.COM, filed on August 9, 2000 and registered on August 14, 2001 for “online employment services, namely services that permit prospective employers to list hourly employment opportunities for job seekers, and allows job seekers looking for such opportunities to review such listings, to submit applications online and to notify employers in their geographic area that they are searching for a job, directly via a global computer network.
U.S. Reg. No. 2,485,052 SNAGAJOB.COM filed on August 9, 2000 and registered on September 4, 2001 in respect of “online employment services, namely services that permit prospective employers to post hourly employment opportunities for job seekers, and allows job seekers looking for such opportunities to review such listings, to submit applications online and to notify employers in their geographic area that they are searching for a job, directly via a global computer network
U.S. Reg. No. 3,347,747 SNAGAJOB.COM filed on March 21, 2010 and registered on December 4, 2007 in respect of “providing an online searchable database featuring hourly employment opportunities”.
U.S. Reg. No. 3,411,545 SNAGAJOB.COM filed on July 31, 2010 and registered on April 15, 2010 in respect of “providing an online searchable database featuring hourly employment opportunities and
U.S. Reg. No. 3,487,421 SNAGAJOB.COM filed on July 31, 207 and registered on August 19 2008 in respect of “providing an online searchable database featuring hourly employment opportunities”.
Copies of TARR Reports from the United States Patent and Trademark Office (the "USPTO") attached in an annex to the Complaint.
Complainant is the owner of the Internet domain name <snagajob.com> created on April 9, 2000 and maintains an active web site at that address.
The disputed domain name was created on June 19, 2003.
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.
While Respondent has challenged the strength of Complainant’s rights in its registered trademark, it accepts that Complainant has reached the threshold required by the Policy to prove that it has rights in a trademark or service mark through its U.S. Federal Trademark registrations listed above.
This Panel is satisfied that there is a confusing similarity between the marks SNAGAJOB.COM and the disputed domain name <wwwsnagajob.com>.
It is well established that the “.com” gTLD extension may be ignored when making the comparison and Respondent itself has argued that the letters “www” are short for World Wide Web and commonly used to denote an Internet presence. In the view of this Panel any comparison of the disputed domain name and Complainant’s mark in the context of use on the Internet should disregard the letters “www”.
This Panel finds that the disputed domain name is confusingly similar to Complainant’s mark and Complainant is entitled to succeed in the first element of the test in paragraph 4(a) of the Policy.
This Panel accepts that when applying Policy paragraph 4(a)(ii) a prima facie standard only creates a presumption that will automatically succeed only if uncontested but if a respondent puts forward a plausible case contradicting the prima facie argument, the panel must decide the issue "on the basis of all of the evidence, with the complainant carrying the ultimate burden of proof."
Applying this principle, this Panel finds however that on the basis of all the evidence adduced, Complainant has discharged the burden of proof necessary to establish on the balance of probabilities that Respondent has no rights or legitimate interest in the disputed domain name.
Complainant has registered trademark rights in the words SNAGAJOB.COM. A trademark registration imputes a level of distinctiveness. Clearly the words “ a” and “job” lack distinctiveness in the context of Complainant’s use of the trademark and Respondent’s use of the disputed domain name, however this Panel finds that, taken in combination, the words “snag”, “a” and “job” as adapted by Complainant to identify its services are distinctive and identifiable with Complainant and the goodwill and reputation that Complainant has established through its trademark registrations and use on the Internet on Complainant’s website to which the <snagajob.com> resolves.
By contrast, Respondent has failed to show any connection whatsoever with the phrase “snag a job” but relies on an argument that this is a commonly used phrase. In support of this argument Respondent has cited a number of search results to demonstrate that the phrase is used by third parties. Respondent’s evidence does not demonstrate commonplace use of the phrase and none of the examples pre-date Complainant’s first use and registration of the trademarks.
Respondent’s arguments that its use of a domain name to generate pay-per-click revenue may be a bona fide use of a domain name consisting of a generic word are moot in the present case because this Panel finds that Complainant’s trademark has a distinctive character. Respondent is using the domain name to compete with Respondent for services for which Complainant has a number of registered trademarks each of which is confusingly similar to the disputed domain name. If such use were to be considered bona fide, it would mean that there is no point to Complainant’s trademark registrations.
Respondent’s arguments that Complainant’s trademark registrations afford limited geographical protection are disingenuous as there is no indication in the Response or on Respondent’s website that its purpose or links are exclusive of U.S.A. content.
This Panel finds that Complainant has satisfied the second element in the test in Policy paragraph 4(a)(ii) also.
On the evidence Complainant registered the domain name <snagajob.com> on April 9, 2000. The earliest trademark registration relied upon by Complainant was filed on August 9, 2000 The disputed domain name was not created until June 19, 2003.
In the view of this Panel on the balance of probabilities Respondent was aware of Complainant, its business, and its domain name <snagajob.com> when the disputed domain name was registered. While there is no evidence that Respondent had actual knowledge of Complainant’s trademark registrations on the balance of probabilities it was aware of Complainant’s reputation.
The essence of this Complaint turns on whether Respondent is correct in arguing that the disputed domain name is generic and therefore Respondent was entitled to register and is entitled to use the disputed domain name for employment related content in the face of Complainant’s allegedly weak rights in its registered trademarks and common law rights in the SNAGAJOB.COM in the U.S.A. for online employment related services.
This Panel is not convinced by Respondent’s argument that the mark SNAGAJOB.COM lacks distinctiveness. This Panel cannot go behind Complainant’s trademark registrations which must speak for themselves. If Respondent wishes to challenge these registrations it must be done in another forum.
This Panel finds that on the balance of probabilities the disputed domain name was chosen and registered in order to take an opportunistic advantage of Complainant’s reputation and goodwill in the SNAGAJOB.COM mark.
In reaching this conclusion this Panel is fortified in the knowledge that when the disputed domain name was registered Complainant had already registered and was using the <snagajob.com> domain name for its business. The registrant of the disputed domain name must have become aware of Complainant’s domain name at that stage and chose to intentionally engage in typosquatting by registering a domain name that is a confusingly similar misspelling of Complainant’s domain name. This Panel finds on the balance of probabilities therefore that the disputed domain name is being used to create a likelihood of confusion with Complainant's SNAGAJOB.COM mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site or location.
Complainant has therefore satisfied the third and final element of the test in Policy paragraph 4(a)(iii) and is entitled to succeed in this Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED
Accordingly, it is Ordered that the <wwwsnagajob.com> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman Panelist
Dated: October 15, 2010
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