CyraCom International, Inc. v. George Washere
Claim Number: FA2007001906946
Complainant is CyraCom International, Inc. (“Complainant”), represented by Rachel A. Nicholas of Lewis Roca Rothgerber Christie LLP, United States. Respondent is George Washere (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <careerscyracom.com>, registered with eNom, LLC.
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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 31, 2020; the Forum received payment on July 31, 2020.
On August 3, 2020, eNom, LLC confirmed by e-mail to the Forum that the <careerscyracom.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 August 5, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 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@careerscyracom.com. Also on August 5, 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 August 27, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant submits that it has rights in the CYRACOM mark acquired through its ownership of the trademark and service mark registrations described below and the reputation and goodwill that it has established in the mark through its use as an identifier of Complainant’s translation and language services since 1998.
Complainant claims to be a leading provider of language service in the United States and that it currently employees over 2500 people in numerous states.
Complainant submits that the disputed domain name incorporates the entirety of the CYRACOM mark and argues that the disputed domain name is confusingly similar to its mark based on this fact alone.
Complainant submits that the addition of the generic word “careers” in the disputed domain name does not distinguish it from Complainant’s mark, arguing that moreover, the term “career” has an obvious connection to Complainant’s recruitment and hiring efforts, increasing the likelihood that Internet users would consider the disputed domain name associated with Complainant.
Complainant submits that Respondent has no rights or legitimate interests in the disputed domain name which was registered on February 10, 2020, more than twenty years after Complainant first used its CYRACOM trademark, and long after Complainant’s rights in the mark achieved incontestable status with the U.S. Patent and Trademark Office and could not be legitimately used by Respondent.
Complainant asserts that Respondent is not affiliated with Complainant and does not have authorization to use the CYRACOM mark or to register any domain names containing the mark.
Complainant submits that Respondent is not commonly known as “CyraCom” or any other similar designation.
Complainant adds that Respondent is not using the disputed domain name to identify or comment upon Complainant. Thus, Respondent has no free speech rights or interests in the disputed domain name.
Referring to screenshots of the website to which the disputed domain name resolves, which Complainant asserts show that Respondent is using the disputed domain name in an attempt to defraud visitors and phish for confidential information by redirecting users to a rotating series of third-party websites, which are related to neither Complainant nor Respondent.
The screenshots show that on June 3, 2020 the disputed domain name directed users to a website displaying “Windows Technical Support” with a message showing
On July 30, 2020 the disputed domain name directed to a slightly different message as follows:
These two messages viewed on July 30 and June 3, 2020 assert that the visitor’s computer is infected with “pornographic spyware” and instructs the visitor to contact a toll-free number in order to remove the spyware. Complainant submits that Respondent is thereby seeking to seek to defraud consumers through the sale of fraudulent tech support services and by obtaining the personally identifiable information of consumers and argues that where a respondent engages in a fraudulent scheme, no rights or legitimate interests may exist.
On other dates, June 3, 2020 and again on July 30, 2020 the disputed domain name resolved to parked pages with various pay-per-click links from which Respondent presumably benefits commercially, as follows:
On June 2 and July 30, 2020, the disputed domain name directed to a websites each of which purported to have a “security check”:-
The pop-ups on these two security checks, direct visitors to run a “standard security check” or to click “continue” safely browse, after which they are directed to purchase unnecessary security software.
Complainant adds that Respondent is using the disputed domain name to direct to the parked pages containing pay-per-click links and presumably earning “click-through” fees for each consumer it redirects to websites via these hyperlinks. Complainant submit that such use is not a bona fide offering of goods or services nor is it a legitimate noncommercial or fair use of the disputed domain name. See Amazon Technologies, Inc. v. John Rood, FA 1705454 (Forum Jan. 12, 2017) (“Where a Respondent engages in a fraudulent scheme, no rights or legitimate interests may exist.”).
Complainant submits that the disputed domain name was registered and is being used in bad faith arguing that because the disputed differs from Complainant’s careers webpage by a single period, the mere initial interest confusion caused by the similarity between the mark, Complainant’s own website, and the disputed domain name is sufficient for a finding of bad faith.
Complainant also asserts that Respondent is not licensed nor authorized in any other way to use Complainant’s Mark in the disputed domain name or in any other fashion.
Complainant adds that because the disputed domain name is registered through a privacy service, also gives rise to a presumption of bad faith registration and use under the Policy.
Additionally, Complainant alleges that Respondent’s registration and use of the disputed domain name to perpetrate the fraudulent activity by misleading Internet users as described above, constitutes registration and use in bad faith.
Complainant concludes by arguing that Respondents’ intentional use of Complainant’s mark to confuse prospective applicants as to the source, sponsorship, or affiliation of Respondent’s online activities, diverting prospective applicants from Complainant, disrupting Complainant’s business, and tarnishing Complainant’s CYRACOM mark is evidence of bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant uses the CYRACOM trademark and service mark to identify its language and translation services and is the owner of the following trademark and service mark registrations for the CYRACOM mark which it uses in the provision of its services.
· United States registered trademark CYRACOM, registration number 4,646,416, registered on the Principal Register on November 25, 2014 for goods in international class 9;
· United States registered trademark CYRACOM (Design), registration number 4,307,829, registered on the Principal Register on March 26, 2013 for goods in international class 9.
· United States registered service mark CYRACOM (Design), registration number 4,307,828 registered on the Principal Register on March 26,2013 for services in international class 41
· United States registered service mark CYRACOM, registration number 2,266,910, registered on the Principal Register on August 3, 1999 for services in international class 41.
The disputed domain name was registered on February 10, 2020.
There is no information about the Respondent except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the FORUM’s request for verification of the registration details of the disputed domain name. Respondent availed of a proxy service to conceal his identity which was disclosed by the Registrar in the course of this proceeding.
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”).
Complainant has adduced clear and convincing, uncontested evidence that it has rights in the CYRACOM mark acquired through its ownership of the trademark and service mark registrations described above and the reputation and goodwill that it has established in the mark through its use as an identifier of Complainant’s translation and language services.
The disputed domain name consists of the word “careers” in combination with Complainant’s CYRACOM mark and the Top-Level Domain (gTLD) extension <.com>.
The word “careers” is generic and adds no distinguishing character to Complainant’s CYRACOM mark which is the dominant and only distinctive element in the disputed domain name as the gTLD <.com> extension is typically disregarded under the first element confusing similarity test, as it a standard requirement for registration.
This Panel finds therefore that the disputed domain name is confusingly similar to the CYRACOM mark in which Complainant has rights and Complainant has succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing
· that Respondent is not commonly known as “CyraCom” or any other similar designation;
· that the disputed domain name was registered on February 10, 2020, more than twenty years after Complainant first used its CYRACOM trademark, and long after Complainant’s rights in the mark achieved incontestable status with the U.S. Patent and Trademark Office without the license or authority of Complainant;
· that Respondent is not using the disputed domain name to identify or comment upon Complainant and thus has no free speech rights or interests in the disputed domain name;
· that screenshots of the websites to which the disputed domain name resolves, show that Respondent is using the disputed domain name in an attempt to defraud visitors and phish for confidential information by redirecting users to a rotating series of third-party websites, which are related to neither Complainant nor Respondent and misleadingly direct Internet users to purchase unnecessary security software;
· that Respondent is also using the disputed domain name to direct to the parked pages containing pay-per-click links and presumably earning “click-through” fees for each consumer it redirects to websites via these hyperlinks; and
· that such use is not a bona fide offering of goods or services nor is it a legitimate noncommercial or fair use of the disputed domain name.
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name. Respondent has failed to file any Response to the Complaint or provide any defense to Complainant’s allegations and so has not discharged the burden. In the circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant has shown that on the balance of probabilities the disputed domain name was registered long after it acquired rights in its CYRACOM mark. In the absence of any explanation from Respondent, this Panel must find that the disputed domain name was registered with Complainant’s mark in mind. Perhaps the most significant piece of evidence to show that the registrant was aware of Complainant and its services is that the first set of links on the parking page to which the disputed domain name resolved in June 3, 2020 related to “interpreter services” which is a field of activity in which Complainant uses its distinctive CYRACOM mark.
This Panel finds therefore on the balance of probabilities that the disputed domain name was deliberately chosen and registered in bad faith with Complainant in mind in order to take predatory advantage of Complainant’s reputation and goodwill in the CYRACOM mark.
Complainant has adduced uncontested evidence as shown above that the disputed domain name has been used to misleadingly attract Internet users by use of the CYRACOM mark, to collect personal information, offer unnecessary software and provide links to third party websites presumably for commercial benefit to Respondent.
This Panel finds therefore on the balance of probabilities the disputed domain name was registered and is being used in bad faith; and that Respondent is intentionally using Complainant’s mark to confuse prospective applicants as to the source, sponsorship, or affiliation of Respondent’s online activities, diverting prospective applicants from Complainant, disrupting Complainant’s business, and tarnishing Complainant’s CYRACOM mark is evidence of bad faith registration and use.
This bad faith activity by Respondent is particularly egregious as it is targeting people seeking employment.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii) and is entitled to the remedy requested in the Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <careerscyracom.com> domain name be TRANSFERRED from Respondent to Complainant.
_________________________________
James Bridgeman SC
Panelist
Dated: August 28, 2020
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