Twilio Inc. v. Namecheap baddo
Claim Number: FA2203001986813
Complainant is Twilio Inc. (“Complainant”), represented by Jessica Tam of Cobalt LLP, California, USA. Respondent is Namecheap baddo (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <twiliocareers.com>, registered with NameCheap, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 3, 2022; the Forum received payment on March 3, 2022.
On March 3, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <twiliocareers.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 March 7, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2022 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@twiliocareers.com. Also on March 7, 2022, 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 31, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is a worldwide leader in cloud communications.
Complainant has rights in the TWILIO mark due to the registration of the mark with trademark authorities around the world.
Respondent’s <twiliocareers.com> domain name is confusingly similar to Complainant’s TWILIO mark. Respondent incorporates the mark in its entirety and adds the generic term “careers” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <twiliocareers.com> domain name as Respondent is not commonly known by the at-issue domain name nor did Complainant authorize Respondent to use the TWILIO mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to impersonate Complainant by offering job listings with Complainant.
Respondent registered and used the <twiliocareers.com> domain name in bad faith as Respondent attempts to pass itself off and impersonate Complainant to offering fake job listings and perpetuate a scheme to defraud third parties into tendering payments to Respondent’s account. Respondent also had actual knowledge of Complainant’s rights in the TWILO mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TWILIO mark.
Complainant’s rights in TWILIO existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademarks.
Respondent uses the at-issue domain name to pass itself off as Complainant to perpetuate fraud.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Any of Complainant’s national trademark registrations for TWILIO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”); see also, ECCO SKO A/S v. Bobrov Danila, FA 1770718 (Forum Mar. 12, 2018) (“Complainant has rights in the ECCO mark based on a series of trademark registrations via the Madrid Protocol through the World Intellectual Property Organization (“WIPO”)).
The at-issue domain name consists of Complainant’s TWILIO trademark followed by the term “careers,” with all followed by the “.com” top level domain name. The differences between <twiliocareers.com> and Complainant’s TWILIO trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <twiliocareers.com> domain name is confusingly similar to Complainant’s TWILIO trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <twiliocareers.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the registrant of <twiliocareers.com> as “Namecheap Baddo” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <twiliocareers.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Additionally, Respondent uses the at-issue domain name to impersonate Complainant so it might then pretend to offer third parties jobs with Complainant. Using the at-issue domain name to confuse internet users by disingenuously offering jobs related to Complainant’s business is neither a bona fide offering of goods or services per Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See iFinex Inc. v. Yuri Hefetz / Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s website in order to cause existing or potential customers to falsely believe they are setting up a new account with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“Passing off as a complainant through e-mails is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As discussed above, Respondent uses the at-issue domain name to pass itself off as Complainant and post fake job listings. After a target of Respondent’s scheme gives up personal information to an online form in pursuit of a bogus job, Respondent uses email sent from the at-issue domain name to contact Respondent’s victim. The email is designed to trick the victim into believing he or she have been hired by Complainant and needs to remit funds to Respondent as part of the hiring process. Respondent’s use of <twiliocareers.com> in this manner is evidence of bad faith per 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)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the TWILIO mark when it registered <twiliocareers.com> as a domain name. Respondent’s actual knowledge is evident given the notoriety of Complainant’s TWILIO trademark and from Respondent’s use of the domain name to pass itself off as Complainant as discussed elsewhere herein. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name further indicates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twiliocareers.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 1, 2022
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