SnagAJob.com, Inc. v. Private Registration - bmon
Claim Number: FA1010001354120
Complainant is SnagAJob.com, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Private Registration - bmon (“Respondent”), Grand Cayman.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snajajob.com>, registered with Bargin Register, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 22, 2010; the National Arbitration Forum received payment on October 22, 2010.
The National Arbitration Forum made several attempts to receive verification from Bargain Register, Inc., that the <snajajob.com> domain name is registered with Bargain Register, Inc. and that Respondent is the current registrant of the names. The Forum also made several attempts to receive verification from Bargain Register, Inc. that Respondent is bound by the Bargain Register, Inc. registration agreement and has thereby agreed to resolve domain name disputes brought by third-parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). Bargain Register, Inc. did not reply to the Forum’s verification requests.
On November 9, 2010 the Forum reported to ICANN that Bargain Register, Inc. was non-compliant with the Forum’s verification requests. On November 9, 2010 the Forum notified ICANN and the parties that the case would proceed without verification due to Bargain Register, Inc.’s failure to comply with the Forum’s verification requests.
On November 9, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 29, 2010 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@snajajob.com. Also on November 9, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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.
On November 30, 2010, the Forum received notification from Bargain Register, Inc. that the domain is registered with Bargainregister.com, the current registration falls under the UDRP code and the domain has been locked.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2010 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions:
1. Respondent’s <snajajob.com> domain name is confusingly similar to Complainant’s SNAGAJOB.COM mark.
2. Respondent does not have any rights or legitimate interests in the <snajajob.com> domain name.
3. Respondent registered and used the <snajajob.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SnagAJob.com, Inc., uses its SNAGAJOB.COM mark in connection with online employment services, including those that permit prospective employers to list hourly employment opportunities for job seekers and allow job seekers looking for such opportunities to review such listings, submit applications online, and to notify employers in their geographic area that they are searching for a job. Complainant holds multiple trademark registrations for its SNAGAJOB.COM mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,485,052 filed August 9, 2000; issued August 18, 2007).
Respondent, Private Registration – bmon, registered the disputed domain name on June 27, 2005. The disputed domain name resolves to a website featuring pay-per-click links to third-party websites, some of which directly compete with Complainant.
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."
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(e), 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 (Nat. Arb. 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.”).
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.
Complainant asserts rights in its SNAGAJOB.COM by virtue of its multiple registrations of the mark with the USPTO (e.g., Reg. No. 2,485,052 filed August 9, 2000; issued August 18, 2007). The Panel finds that Complainant’s multiple registrations of the mark with the USPTO are sufficient evidence of Complainant’s rights in the mark, even where Respondent resides or operates in a country outside the trademark authority’s jurisdiction. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Additionally, the Panel finds that the relevant date for determining Complainant’s rights in its mark is the filing date of the USPTO registration. See Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”). Accordingly, the Panel finds that Complainant’s rights in the mark under Policy ¶ 4(a)(i) date back to the filing date of August 9, 2000.
Complainant alleges that Respondent’s <snajajob.com> domain name is confusingly similar to Complainant’s own SNAGAJOB.COM mark. Respondent’s disputed domain name merely replaces the letter “g” in Complainant’s mark with the letter “j” in the disputed domain name. The Panel finds that such a minor alteration, which renders the disputed domain name phonetically similar to Complainant’s mark, does not distinguish the disputed domain name adequately. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Vivendi Universal Games, Inc. v. Cupcake Patrol, FA 196245 (Nat. Arb. Forum Oct. 31, 2003) (“Respondent's <blizzerd.com> domain name is confusingly similar to Complainant's BLIZZARD mark. The replacement of the letter 'a' in Complainant's BLIZZARD mark with the letter 'e' creates a domain name that is phonetically identical and confusingly similar to Complainant's mark.”). Accordingly, the Panel finds that, pursuant to Policy ¶ 4(a)(i), Respondent’s <snajajob.com> domain name is confusingly similar to Complainant’s SNAGAJOB.COM mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must first make a prima facie case in support of its allegations, then the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). The Panel finds that based on the arguments in the Complaint, Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). Nevertheless, the Panel will examine the record in light of the factors contained in Policy ¶ 4(c) to determine whether Complainant has rights or legitimate interests in the disputed domain name.
Complainant asserts that Respondent has not been commonly known by the disputed domain name. Complainant submits the WHOIS information which identifies the registrant of the disputed domain name as “Private Registration – bmon.” The Panel finds that where, as here, the WHOIS information fails to reflect that Respondent is commonly known by the disputed domain name and where there does not appear to be any additional evidence in the record to contradict the WHOIS information, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. 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).
Complainant alleges that Respondent is using the disputed domain name to resolve to a website featuring links to third-parties that compete with Complainant in the online employment services industry. Complainant further alleges that Respondent receives pay-per-click revenue from the displayed links. The Panel finds that Respondent’s use of the disputed domain name to display links to Complainant’s competitors is not considered a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Complainant argues that Respondent has engaged in typosquatting by registering the disputed domain name which contains a common misspelling of Complainant’s SNAGAJOB.COM mark. The Panel finds that Respondent’s registration of a typosquatted version of Complainant’s mark attempts to capitalize on Internet users’ mistakes and is evidence of Respondent’s lack of rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that Respondent’s registration and use of the disputed domain name to display links to Complainant’s competitors in the online employment services industry constitutes a disruption of Complainant’s business. The Panel finds that Respondent’s disruption of Complainant’s business supports a finding of bad faith pursuant to Policy ¶ (b)(iii). See David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
The Panel also finds that the record supports a finding of bad faith registration and use under Policy ¶ 4(b)(iv). Respondent’s confusingly similar disputed domain name displays links to Complainant’s competitors and may cause Internet users to become confused as to Complainant’s sponsorship of, or affiliation with, the disputed domain name, resolving website, and displayed links. Complainant alleges, and the Panel presumes, that Respondent profits through the receipt of click-through fees. Therefore, the Panel concludes that Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion as to Complainant’s involvement with the disputed domain name. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Asbury Auto. Group, Inc. v. Tex. Int’l Prop. Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent’s use of the disputed domain name to advertise car dealerships that competed with the complainant’s business would likely lead to confusion among Internet users as to the sponsorship or affiliation of those competing dealerships, and was therefore evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
As established previously, Respondent has engaged in the practice of typosquatting. The Panel finds that typosquatting is itself evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <snajajob.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 4, 2010
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