Indeed, Inc. v. rohan sharma
Claim Number: FA1906001849110
Complainant is Indeed, Inc. (“Complainant”), represented by Justin S. Haddock of Indeed, Inc., Texas, USA. Respondent is rohan sharma (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeedjobsonline.com>, registered with Domainshype.com, LLC..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 21, 2019; the Forum received payment on June 21, 2019.
On June 21, 2019, Domainshype.com, LLC confirmed by e-mail to the Forum that the <indeedjobsonline.com> domain name is registered with Domainshype.com, LLC and that Respondent is the current registrant of the name. Domainshype.com, LLC has verified that Respondent is bound by the Domainshype.com, LLC 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 June 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 15, 2019 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@indeedjobsonline.com. Also on June 24, 2019, 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 July 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <indeedjobsonline.com> domain name is confusingly similar to Complainant’s INDEED mark.
2. Respondent does not have any rights or legitimate interests in the <indeedjobsonline.com> domain name.
3. Respondent registered and uses the <indeedjobsonline.com> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant provides an online job site, servicing over 60 different countries. Complainant holds a registration for the INDEED mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,141,242, registered Sep. 12, 2006).
Respondent registered the <indeedjobsonline.com> on March 4, 2019, and uses it to compete with Complainant and to conduct a phishing scheme.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that Complainant has rights in the INDEED mark under Policy ¶ 4(a)(i) through its registration with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <indeedjobsonline.com> domain name includes Complainant’s mark and merely adds generic terms. This change does not distinguish the domain name from a mark per Policy ¶ 4(a)(i). See Starbucks Corporation d/b/a Starbucks Coffee Company v. Waseem A Ali / Micron Web Services, FA 1785616 (Forum June 8, 2018) (finding the <starbucksreal.com> domain name to be confusingly similar to the STARBUCKS mark, as “the addition of the generic term ‘real’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.”). The addition of a gTLD is irrelevant when determining whether a domain name is identical or confusingly similar to a mark. See Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). Accordingly, the Panel finds that Respondent’s <indeedjobsonline.com> domain name is confusingly similar to Complainant’s INDEED mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 lacks rights and legitimate interests in the <indeedjobsonline.com> domain name, as Respondent is not commonly known by the disputed domain name. Complainant has not given Respondent a license or otherwise consented to its use of the INDEED mark. The WHOIS information for the disputed domain name lists the registrant as “Rohan Sharma.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or a fair use of the <indeedjobsonline.com> domain name. Complainant contends that Respondent uses the disputed domain name to display Complainant’s INDEED mark and to offer services in competition with Complainant, and provides supporting screenshots. Therefore, the Panel finds that Respondent does not make a bona fide offering of goods or services or legitimate noncommercial or fair use and thus has nor rights under Policy ¶¶ 4(c)(i) or (iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”).
Complainant also argues that Respondent uses an email address associated with the <indeedjobsonline.com> domain name to send fake job emails for the purpose of stealing consumers’ money. The use of an email address associated with a disputed domain name to pass off as a complainant is also not a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). 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 purportedly from agents of complainant to be 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)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent impersonates Complainant through the use of an email address associated with the <indeedjobsonline.com> domain name, no doubt for its own commercial gain. The Panel agrees and finds that this constitutes bad faith under Policy ¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”).
Complainant contends that Respondent registered and uses the <indeedjobsonline.com> domain name in bad faith to create a likelihood of confusion with Complainant’s INDEED mark. The use of a disputed domain name to create a likelihood of confusion may be evidence of bad faith per Policy ¶ 4(b)(iv). See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain). Accordingly, the Panel finds that further evidence that Respondent registered and uses the <indeedjobsonline.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant shows that Respondent uses the disputed domain name to direct Internet users to its website, where Respondent offers goods and services in direct competition with Complainant. Therefore, the Panel finds that this is additional evidence of bad faith under Policy ¶ 4(b)(iv). See 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).”).
Complainant also argues that, due to the fame of the INDEED mark, in use for over a decade before Respondent registered the disputed domain name, Respondent had actual knowledge of Complainant’s rights in the mark. The Panel agrees and finds that Respondent had actual knowledge of the INDEED mark, which constitutes bad faith under Policy ¶ 4(a)(iii). See Coachella Music Festival, LLC v. ALEXANDER DE ALMEIDA LOPES, FA 1705267 (Forum Jan. 9, 2017) (finding the respondent had actual knowledge of the complainant’s COACHELLA mark when it registered and used the <coachellastuff.com> domain name—and thus did so in bad faith—because the complainant presented adequate evidence that its mark was well-known and famous).
The Panel finds that Complainant has 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 <indeedjobsonline.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 20, 2019
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