Indeed, Inc. v. JOSENILSON ALVES BELTRAO
Claim Number: FA1810001814506
Complainant is Indeed, Inc. (“Complainant”), represented by Justin Haddock of Indeed, Inc., Texas, USA. Respondent is JOSENILSON ALVES BELTRAO (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <secure-indeed.com>, registered with Tucows Domains 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.
David A. Einhorn as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 31, 2018; the Forum received payment on October 31, 2018.
On November 1, 2018, Tucows Domains Inc. confirmed by e-mail to the Forum that the <secure-indeed.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 November 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 4, 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@secure-indeed.com. Also on November 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 December 5, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant provides the world’s largest job site, with over two hundred (200) million unique visitors every month from over sixty (60) countries around the world. Complainant has rights in the INDEED mark through its trademark registrations around the world, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,141,242, registered Sep. 12, 2006) and the Canadian Intellectual Property Office (“CIPO”) (e.g., Reg. No. TMA759439, registered Feb. 12, 2010). Respondent’s <secure-indeed.com> domain name is confusingly similar to Complainant’s INDEED mark as Respondent merely adds the generic term “secure,” a hyphen, and a “.com” generic top-level domain (“gTLD”) to the fully incorporated mark.
Respondent has no rights or legitimate interests in the <secure-indeed.com> domain name. Respondent is not licensed or otherwise authorized to use Complainant’s INDEED mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant in order to obtain users’ personal information through phishing.
Respondent registered and uses the <secure-indeed.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name where it passes off as Complainant in furtherance of a phishing scheme. Furthermore, Respondent had actual and constructive knowledge of Complainant’s rights in the INDEED mark prior to registering and subsequent use of the disputed domain name.
B. Respondent
Respondent failed to submit a response. The Panel notes that the <secure-indeed.com> domain name was registered on October 11, 2018.
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 registration of the mark with the USPTO (e.g., Reg. No. 3,141,242, registered Sep. 12, 2006) and the CIPO (e.g., Reg. No. TMA759439, registered Feb. 12, 2010). Registration of a mark with multiple trademark offices is sufficient to establish rights in that mark. See State Farm Mutual Automobile Insurance Company v. Henry Francis, FA 1738716 (Forum July 28, 2017) (acknowledging complainant’s rights in a mark when it had registered the mark with the United States Patent and Trademark Office and the Canadian Intellectual Property Office). The Panel therefore holds that Complainant’s registration of the INDEED mark with the USPTO and CIPO is sufficient to establish rights under the mark per Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <secure-indeed.com> domain name is confusingly similar to the INDEED mark, as the name fully incorporates the mark with the addition of the generic term “secure,” and a hyphen. Adding a generic term and hyphen to a complainant’s mark may not be sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)); see also Daniel Handler v. Masanori Toriimoto / PLAN-B Co.,Ltd, FA 1778986 (Forum May 7, 2018) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). The Panel therefore determines that the <secure-indeed.com> domain name is confusingly similar to the INDEED mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent has no rights or legitimate interests in the <secure-indeed.com> domain name, 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 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 at-issue domain name as “JOSENILSON ALVES BELTRAO,” 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 <secure-indeed.com> domain name.
Additionally, Complainant argues Respondent’s lack of rights or legitimate interests in the <secure-indeed.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends Respondent uses the disputed domain name to impersonate Complainant in order to obtain users’ personal information. Use of a disputed domain name to pass off as a complainant in order to phish for users’ information is not indicative of any rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (refusing to find rights and legitimate interests in a domain name on the part of a respondent when the disputed domain name “resolves to a website that Respondent has designed to mimic Complainant’s own in an attempt to pass itself off as Complainant”). Complainant provides a screenshot of the disputed domain name’s resolving website which features a facsimile of Complainant’s INDEED mark and purports of offer users job search services. Complainant contends that Respondent uses the disputed domain name to obtain customers or potential customers’ personal information. Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent’s use of the <secure-indeed.com> domain name to pass off as Complainant in order to obtain users’ personal information demonstrates that Respondent registered and used the domain name in bad faith. Use of a domain name to create a false impression of affiliation with a complainant in order to phish for users’ information is behavior indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent registered and used the domain name in bad faith because the respondent used the name to resolve to a website virtually identical to the complainant’s to prompt users to enter their login information so that the respondent may gain access to that customer’s cryptocurrency account). Complainant provides a screenshot of the disputed domain name’s resolving website which features a facsimile of Complainant’s INDEED mark and purports of offer users job search services. Complainant contends that Respondent uses the disputed domain name to obtain customers or potential customers’ personal information. The Panel therefore finds that Respondent registered and used the domain name in bad faith per 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 <secure-indeed.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: December 17, 2018
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