DECISION
Indeed, Inc. v. James Nicholson
Claim Number: FA2001001878920
PARTIES
Complainant is Indeed, Inc. (“Complainant”), represented by Justin S. Haddock of Indeed, Inc., Texas, United States. Respondent is James Nicholson
(“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lndeed.host>, registered with NICENIC INTERNATIONAL GROUP CO., LIMITED.
PANEL
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.
John J. Upchurch as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the Forum electronically on January 15, 2020; the Forum received payment on January 15, 2020.
On February 11, 2020, NICENIC INTERNATIONAL GROUP CO., LIMITED confirmed by e-mail to the Forum that the <lndeed.host> domain name is registered with NICENIC INTERNATIONAL GROUP CO., LIMITED and that Respondent is the current registrant of the name. NICENIC INTERNATIONAL GROUP CO., LIMITED has verified that Respondent is bound by the NICENIC INTERNATIONAL GROUP CO., LIMITED 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 February 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 3, 2020 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@lndeed.host. Also on February 12, 2020, 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 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A. Complainant
1. Complainant, Indeed, Inc., helps prospective employees find jobs and helps companies find employees. Complainant has rights in the INDEED mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,141,242 registered on Sep. 12, 2006). See Compl. Ex. C. Respondent’s <lndeed.host> domain name is confusingly similar to Complainant’s INDEED mark as it wholly incorporates the mark, changing the “I” to a “L”, resulting in visual similarity, and adding the “.host” generic top-level domain (“gTLD”).
2. Respondent lacks rights or legitimate interests in the <lndeed.host> domain name. Respondent is not commonly known by the disputed domain name and Respondent is not a licensee or authorized to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to send fraudulent emails to Complainant’s customers to trick them into revealing personal financial information.
3. Respondent registered and uses the <lndeed.host> domain name in bad faith. Respondent attempts to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s mark as to Respondent’s affiliation with Complainant. Further, Respondent impersonates Complainant in emails in order to fraudulently acquire personal financial information from Complainant’s customers. Finally, Respondent had actual knowledge of Complainant’s rights in the INDEED mark prior to its registration of the disputed domain name.
B. Respondent
1. Respondent failed to submit a response in this proceeding.
FINDINGS
1. Respondent’s <Indeed.host> domain name is confusingly similar to Complainant’s INDEED mark.
2. Respondent does not have any rights or legitimate interests in the <Indeed.host> domain name.
3. Respondent registered or used the <Indeed.host> domain name in bad faith.
DISCUSSION
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”).
Identical and/or Confusingly Similar
Next, Complainant argues that Respondent’s <lndeed.host> domain name is confusingly similar to Complainant’s INDEED mark as it wholly incorporates the mark, changing the “I” to a “L”, resulting in visual similarity, and adding the “.host” gTLD. Misspelling the mark to create visual similarity and adding a gTLD does not distinguish a disputed domain name for purposes of Policy ¶ 4(a)(i). See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). See also Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”) Therefore, the Panel finds that the disputed domain name is confusingly similar to the INDEED mark under Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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 contends Respondent lacks rights or legitimate interests in the <lndeed.host> domain name. Specifically, Complainant argues that Respondent is not commonly known by the disputed domain name and Respondent is not a licensee or authorized to use Complainant’s INDEED mark. Where a response is absent, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See 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)”). The WHOIS information for the disputed domain name lists the registrant as “James Nicholson,” and there is no other evidence to suggest that Respondent was authorized to use the INDEED mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per ¶ 4(c)(ii).
Complainant argues Respondent fails to use the <lndeed.host> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Specifically, Respondent uses the disputed domain name to impersonate Complainant in emails to fraudulently acquire Complainant’s customers’ financial information. A respondent’s use of a disputed domain name to impersonate a Complainant in such a phishing scheme may not be a bona fide offering of goods or services nor a noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”); see also Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for Internet users personal information by offering a fake job posting on the resolving website). Complainant provides a copy of an email sent from Respondent’s disputed domain name which purportedly sends fraudulent notices to Complainant’s customers that they have past due invoices in an attempt to obtain their financial information. See Compl. Ex. D. The Panel therefore finds Respondent fails to make a bona fide offering of goods or services nor a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Registration and Use in Bad Faith
Complainant argues Respondent and uses the <lndeed.host> domain name in bad faith as Respondent intentionally attempts to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s mark as to Respondent’s affiliation with Complainant. Registration of a disputed domain name with confusing similarity in order to confuse Internet users may evince bad faith pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Complainant contends that Internet users will be confused by Respondent’s confusingly similar domain name, and Internet users may incorrectly believe Respondent is affiliated with Complainant as a result. Therefore, the Panel finds Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Further, Complainant argues Respondent registered and uses the <lndeed.host> domain name in bad faith as Respondent impersonates Complainant and sends fraudulent emails to Complainant’s customers in furtherance of a phishing scheme. A respondent’s use of a disputed domain name in connection with a fraudulent phishing scheme may be evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)); see also Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the disputed domain name to send emails to Internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process). Complainant provides a copy of an email sent from Respondent’s disputed domain name which purportedly sends fraudulent notices to Complainant’s customers that they have past due invoices in an attempt to obtain their financial information. See Compl. Ex. D. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Finally, Complainant argues Respondent registered and uses the <lndeed.host> domain name in bad faith as Respondent had actual knowledge of Complainant’s rights in the INDEED mark prior to its registration of the disputed domain name. Actual knowledge is sufficient and may be proven through a totality of circumstances per Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize constructive notice as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”); see also Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Complainant contends that Respondent’s actual knowledge of Complainant’s rights in the INDEED mark is demonstrated by Respondent’s use of the famous INDEED to impersonate Complainant in emails to obtain Complainant’s customers’ personal information. Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lndeed.host> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 17, 2020
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