PCM, Inc. v. Darras Court / PCM INC. / Bonita Friesen
Claim Number: FA1802001770356
Complainant is PCM, Inc. (“Complainant”), represented by Katheryn Andresen of Nilan Johnson Lewis, PA, Minnesota, USA. Respondent is Darras Court / PCM INC. / Bonita Friesen (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue are <jobspcm.com> and <careerpcm.com>, registered with Google LLC and GoDaddy.com, LLC.
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.
David A. Einhorn as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 2, 2018; the Forum received payment on February 2, 2018.
On February 6, 2018, Google LLC; GoDaddy.com, LLC confirmed by e-mail to the Forum that the <jobspcm.com> and <careerpcm.com> domain names are registered with Google LLC and GoDaddy.com, LLC and that Respondent is the current registrant of the names. Google LLC and GoDaddy.com, LLC have verified that Respondent is bound by the Google LLC and GoDaddy.com, LLC registration agreements and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 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@jobspcm.com and postmaster@careerpcm.com. Also on February 14, 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 March 8, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant engages in the business of online ordering services in connection with various electronic products and services, and has operated under its mark since 2012. Complainant has rights in the PCM mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,293,168, registered Feb. 19, 2013). Respondent’s <jobspcm.com> and <careerpcm.com> domain names are identical or confusingly similar to Complainant’s mark as they each are intentionally misleading versions of Complainant’s <pcm.com> domain name.
Respondent uses the domain name to create false job advertisements, while using Complainant’s own content on its fraudulent website. Further, Respondent uses the domain names in connection with an email scheme in attempts to solicit private information from unsuspecting individuals.
Respondent registered and uses the <jobspcm.com> and <careerpcm.com> domain names in bad faith, as Respondent uses the domain names to intentionally mislead the public into believing that Complainant operates the resolving domain. Further, Respondent uses the domain name in connection with an email address used to intentionally mislead the job applicant.
B. Respondent
Respondent failed to submit a response in this proceeding. The Panel notes that Respondent registered the <jobspcm.com> and <careerpcm.com> domain names on January 25, 2018, and January 29, 2018, respectively.
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.”).
Preliminary Issue: Multiple Respondents
Complainant contends that the domain names were registered at approximately the same time, with the same address, and are used in the same fashion. The Panel finds that Complainant has sufficiently presented evidence demonstrating that the listed entities are jointly controlled.
Complainant claims rights in the PCM mark through its registration of the mark with the USPTO (e.g. Reg. No. 4,293,168, registered Feb. 19, 2013). See Compl. Ex. D. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark.”). Accordingly, the Panel finds that Complainant has established rights in the PCM mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <jobspcm.com> and <careerpcm.com> domain names are confusingly similar to Complainant’s mark as they each are intentionally misleading versions of Complainant’s <pcm.com> domain name. The Panel notes that while Respondent does not include any specific variations of its PCM mark in the domain names, the domain names include the terms “jobs” and “career” along with the generic top-level domain (“gTLD”) “.com.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.). As such, the Panel finds that the <jobspcm.com> and <careerpcm.com> domain names are confusingly similar to the PCM mark under Policy ¶4(a)(i).
Complainant does not make the argument that Respondent is not commonly known by either the <jobspcm.com> or the <careerpcm.com> domain name. However, where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the <jobspcm.com> domain name as “Bonita Friesen;” and the registrant of the <careerpcm.com> domain name as “Darras Court / PCM INC” of the same address and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <jobspcm.com> or <careerpcm.com> domain names.
Complainant further argues that Respondent uses the domain names in connection with an email scheme in attempts to solicit private information from unsuspecting individuals while purporting to offer job opportunities with Complainant’s business. Phishing attempts evince a lack of any bona fide offering of goods or services or legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the fraudulent email scheme employed by Respondent, where it appears Respondent requests that
users complete an employment application. Complainant also provides a screenshot of its own website and highlights the portion Respondent allegedly uses in its emails. Accordingly, the Panel agrees that Respondent attempts to pass off as Complainant to fraudulently acquire information, and thus fails to use the domain names in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per
Policy ¶ 4(c)(iii).
Therefore, Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <jobspcm.com> and <careerpcm.com> domain names in bad faith, as Respondent uses the domain names to intentionally mislead the public into believing that Complainant operates the email address associated with the domain names to acquire personal information from unsuspecting users. Using confusingly similar domain names to pass off as a complainant to fraudulently acquire personal information can evince bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). As previously noted, Complainant provides screenshots of the fraudulent email scheme employed by Respondent, where it appears that Respondent requests that users complete an employment application. Complainant also provides a screenshot of its own website and highlights the portion Respondent allegedly uses in its emails. As such, the Panel agrees that Respondent attempts to pass off as Complainant in attempts to acquire personal information from users in bad faith under Policy ¶ 4(b)(iv).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <jobspcm.com> and <careerpcm.com> domain names be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: March 20, 2018
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