DECISION

 

Insperity, Inc. v. Atif Javed / Insperity Global Services

Claim Number: FA2309002063250

 

PARTIES

Complainant is Insperity, Inc. ("Complainant"), represented by Caitlin Costello of Pirkey Barber PLLC, Virginia, USA. Respondent is Atif Javed / Insperity Global Services ("Respondent"), New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <insperityglobalservices.com>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 25, 2023; Forum received payment on September 25, 2023.

 

On September 25, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <insperityglobalservices.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 September 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 16, 2023 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@insperityglobalservices.com. Also on September 26, 2023, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send an email to the Forum, see below.

 

On October 17, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.

 

Also on October 17, 2023, the Panel requested that Respondent provide certain information and invited both Parties to provide any other additional information that could assist the Panel.

 

Both parties submitted additional submissions on 25 October, 2023, as requested by the Panel.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it is a leading provider of human resources and business solutions designed to help improve business performance, including employee insurance-related services. Complainant asserts rights in the INSPERITY mark through its registration in the United States in 2012.

 

Complainant alleges that the disputed domain name is confusingly similar to its INSPERITY mark as it incorporates the entire mark and merely adds the terms ("global services") and the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant's INSPERITY mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name was initially being used for a website that attempted to deceive consumers into thinking that Respondent or Respondent's business was affiliated or connected with, or authorized by, Complainant. Specifically, the disputed domain name resolved to a website that prominently featured the Complainant's mark and a red, blue, and green color scheme similar to that found on Complainant's official website. Respondent's site at the disputed domain name also described and purported to offer insurance services similar to Complainant's insurance services. Respondent likewise encouraged users to contact Respondent by way of a phone number and email address, as well as a New York, New York address, that had no affiliation with Complainant. Respondent may have used these methods of contact to illicitly collect user information and commercially benefit by selling it to third parties. Currently, the resolving website states "WE'RE DOWN FOR MAINTENANCE This page is undergoing maintenance and will be back soon". Given the incorporation of Complainant's INSPERITY mark in its entirety into this domain name, Respondent may intend to use the domain name in a deceptive manner or sell the domain name based on the value of the INSPERITY mark. Moreover, passive holding of a domain name, as Respondent is doing, is evidence that the Respondent has no rights or legitimate interests in the domain name. Respondent may use the domain name to impersonate Complainant and/or conduct an illegal phishing scheme by creating and using email addresses incorporating @insperityglobalservices.com to contact customers.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith by offering competing services. The disputed domain name is not being used at present. Respondent's bad faith is also evidenced by the fact that Respondent has configured the disputed domain name to send and receive email communications. Respondent used a privacy service. Respondent had actual knowledge of Complainant's rights in the INSPERITY mark.

 

B. Respondent

Respondent failed to submit a formal Response in this proceeding. In its email to the Forum, Respondent states, in pertinent part: "I really need to solve this trademark issue because my company is not affiliated or connected with Insperity. Inc and my company is registered in Pakistan and USA as well. I have a TAX ID in both countries for Insperity Global Services."

 

C. Additional Submissions

Complainant

In response to the Panel's Procedural Order, Complainant provides evidence that the telephone number displayed on the initial resolving website as "Call for Help", namely "(555) 867-5309", is not a valid telephone number.

 

Respondent

In response to the Panel's Procedural Order, Respondent provides evidence of registration of a US Employer Tax Identification Number (dated September 16, 2020), and of a Pakistani Registration Number (dated May 21, 2015), both referring to "Insperity Global Services". In Pakistan, the listed Principal Activity is "Administration and support services/activities/Activities of call centers".

 

Respondent also states, in pertinent part:

 

Regarding phone numbers, we haven't used any fake numbers or fake details. Our website will be live from tomorrow [October 26, 2023].

 

We are aware of copyright rules and never try to steal anything from any organization.

 

If Insperity Inc. has a lot of issues with my website we can put a note on our website that Insperity Global Services is a sole company and not affiliated or connected with Insperity Inc. or its resources.

 

FINDINGS

Complainant owns the mark INSPERITY and uses it to provide human resources and business solutions.

 

Complainant's rights in its mark date back to 2012.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website initially purported to offer services that are not related to those of Complainant; subsequently, the disputed domain name resolved to a web page stating: "This page is undergoing maintenance and will be back soon". Respondent registered a US Employer Tax Identification Number in 2020, and a Pakistani Registration Number in 2015, both referring to "Insperity Global Services".

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 formal 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").

 

Identical and/or Confusingly Similar

The disputed domain name incorporates Complainant's INSPERITY mark in its entirety, merely adding the generic/descriptive terms "global services" and the ".com" generic top-level domain ("gTLDs"). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic/descriptive terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that the disputed domain name may be used for fraudulent purposes, but it provides no evidence of actual use to support this allegation. Unsupported allegations are insufficient to establish rights under the Policy. See by analogy Richard Izzo Toughman Enterprises v. TJ Tryon, FA 1728347 (Forum May 30, 2017) ("While this Panel is willing to give Complainant some leeway because Complainant is pro se, that does not allow Complainant to ignore its burden of proof. A complainant fails to make a prima facie case when it fails to provide any evidence whatsoever of a respondent's use of a disputed domain name."); see also Chrome Bones / CB Luxury Brands, LLC v. Laursen, Shawn / Shawn's pasta & bake shop, FA 1787926 (Forum June 27, 2018) ("Complainant's evidence of secondary meaning consists only of its unsupported assertion that it has used the mark since 2000. … Respondent's default in this matter notwithstanding, the evidence before the Panel utterly fails to demonstrate that Complainant's trademark rights accrued prior to April 2003, when Respondent registered the Domain Name."). Consequently, the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and will not further discuss it.

 

According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Jurisprudential Overview 3.0"), a Panel may conduct limited factual research regarding disputed domain names:

 

Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.

 

This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.

 

The Panel has consulted both Complainant's and Respondent's websites and publicly available databases, and found the following.

 

According to the initial version of its website, Complainant's services are targeted for small and mid-size businesses. The resolving website initially purported to offer insurance selection services for consumers. Thus the Panel finds that – contrary to what Complainant alleges – the initial resolving website did not purport to offers services that compete with those of Complainant: instead, it purported to offer services not related to those of Complainant. The Panel also finds that – contrary to what Complainant alleges – the initial resolving website was not confusingly similar to Complainant's website: in particular, the logo on the resolving website was different from Complainant's logo.

 

Respondent appears to have a LinkedIn entry which states:

Insperity Global Services is one of the leaders in Nationwide, all Exclusive, Phone Verified Lead Generation and Appointment Settings, located in New York, NY. Pay per call, Digital Marketing, and Call Centers. A leadership team with more than 8 years of experience under their belt in Contact Centers. Currently operating a total of over 500 Seats in multiple countries, generating 20000 Transfers/month

 

Experienced in Generating High-Quality Leads for Auto insurance, Solar paneling, Medicare Supplemental Insurance, and Final Expense.

 

Experienced In Web Development and Web Designing.

My SQL, PHP, WordPress.

 

The initial resolving website purported to offer assistance in selecting insurance providers, and displayed the number "(555) 867-5309" as "Call for Help".

 

From publicly available databases, the Panel has determined that "555" is not a valid area code. Thus it appears unlikely that the initial resolving website was offering real business services.

 

The Pakistani Registration Number provided by Respondent corresponds to what is found in a search of the Pakistani government web site.

 

Under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is known by the disputed domain name. 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).

 

Here, the WHOIS information for the disputed domain name identifies the registrant as "Atif Javed / Insperity Global Services". Respondent provides evidence of tax registrations for a business known as "Insperity Global Services". This can indicate that Respondent is commonly known by the disputed domain name. See Brickworks Building Products Pty Ltd. v. Brickworks LLC, FA 1951356 (Forum Aug. 16, 2021) ("A respondent may be found to be commonly known by a domain name, under Policy ¶ 4(c)(ii), where it provides evidence that it does business under the name."); see also SageNet LLC v. Hill, Randy, FA 1865122 (Forum Nov. 8, 2019) ("Respondent contends that it has legitimate interests in the domain name as the name reflects its business name, Sage Network & Communications. A respondent may have legitimate interests in a disputed domain name where it reflects as business name and the respondent has provided evidence of this.... Respondent provides a copy of its business registration with the California Secretary of State which identifies its business as "Sage Network, Inc." … The Panel therefore finds that Respondent is commonly known by the disputed domain name per Policy ¶ 4(c)(ii).").

 

However, as noted above, it appears unlikely that the initial resolving website was offering real business services; Respondent stated that its website will be live October 26, 2023, but such is not the case; Respondent has not provided evidence of actually offering real business services; Complainant's trademark rights precede Respondent's tax registrations; and – contrary to what Respondent states – it did use a fake telephone number on the original resolving website (but perhaps that is because that original website was derived from a template).

 

Considering all the above elements, the Panel finds, on the balance of the evidence, that it is not clear whether Respondent really is commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

And, since Respondent has not yet implemented a live website, the Panel is unable to determine whether or not it will use the disputed domain name to provide a bona fide offering of goods or services per Policy ¶ 4(c)(i).

 

The closest equivalent to a legislative history for the Policy can be found in the 30 April 1999 Final Report of the WIPO Internet Domain Name Process, which formed the basis for the ICANN Policy (available online at: https://www.wipo.int/amc/en/processes/process1/report/finalreport.html  ). This report states at paragraph 153: "The scope of the procedure would be limited to cases of abusive registrations (or cybersquatting) … and would not be available for disputes between parties with competing rights acting in good faith."

 

The Panel finds that the facts before it are not sufficient to determine whether the instant dispute falls within the scope of the Policy. See Commercial Publ'g Co. v. EarthComm., Inc., FA 95013 (Forum July 20, 2000) ("The adopted policy establishes a streamlined, inexpensive administrative-dispute resolution procedure intended only for the relatively narrow class of cases of "abusive registrations". Thus, the fact that the policy's administrative dispute-resolution procedure does not extend to cases where a registered domain name is subject to a legitimate dispute is a feature of the policy, not a flaw. The policy relegates all "legitimate disputes" to the courts. Only cases of abusive registrations are intended to be subject to the streamline administrative dispute-resolution procedure.").

 

The Panel could suspend the proceedings until Respondent implements a live website, which website could provide sufficient evidence to determine whether Respondent does have rights or legitimate interests, and whether the disputed domain name was registered and used in bad faith. In this context, the Panel notes that the resolving webpage appears to be a customized page and not a page automatically provided by the registrar.

 

However, that may result in a significant delay in disposing of the instant case, and that would not be consistent with the basic purpose of the Policy – which, as set forth in the cited Final Report, is to be quick and efficient ((vi) of the Executive Summary), expeditious (paragraph 150 (i)), and speedy (paragraph 150(vi)). Indeed, Rule 15 (b) states: "In the absence of exceptional circumstances, the Panel shall forward its decision on the complaint to the Provider within fourteen (14) days of its appointment."

 

Thus the Panel declines to suspend the proceedings and it will dispose of the case by dismissing the Complaint, without prejudice.

 

This will allow Complainant to resubmit a complaint if – once Respondent implements a live website (or fails to implement one within a reasonable time) – it can provide evidence of bad faith registration and use, see 4.18 of the cited WIPO Jurisprudential Overview 3.0.

 

Registration and Use in Bad Faith

For the reasons given above, the Panel will not rule on this element of the Policy. See Damijan Tuscana/Medellin Living, LLC v. Brad Hinkelman, FA 1984731 (Forum Mar. 24, 2022) ("In order to succeed in its claim, Complainant must prove all three elements under the Policy."); see also Healthy Pets, Inc. d/b/a Pet Health Solutions v. Kwangpyo Kim, FA 1976154 (Forum Jan. 24, 2022) ("[S]ince Complainant must prove all three elements of Policy ¶ 4(a) under the Policy, Complainant's failure to prove one of the elements makes further inquiry into the remaining elements unnecessary.").

 

DECISION

For the reasons given above, the Complaint is DISMISSED WITHOUT PREJUDICE.

 

Accordingly, it is Ordered that the <insperityglobalservices.com> domain name REMAIN WITH Respondent.

 

 

 

Richard Hill, Panelist

Dated: October 27, 2023