Indeed, Inc. v. Nikolay Indahl / Bashundhara
Claim Number: FA2102001930702
Complainant is Indeed, Inc. (“Complainant”), represented by Ryan Masters of Indeed, Inc., Texas, USA. Respondent is Nikolay Indahl / Bashundhara (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeedch.com>, registered with Namecheap Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 2, 2021; the Forum received payment on February 2, 2021.
On February 3, 2021, Namecheap Inc confirmed by e-mail to the Forum that the <indeedch.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 February 4, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 24, 2021 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@indeedch.com. Also on February 4, 2021, 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 1, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <indeedch.com> domain name is confusingly similar to Complainant’s INDEED mark.
2. Respondent does not have any rights or legitimate interests in the <indeedch.com> domain name.
3. Respondent registered and uses the <indeedch.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Indeed, Inc., operates one of the world’s most popular job search websites. Complainant holds a registration for the INDEED mark with the United States Patent and Trademark Office (“USPTO”) (Reg. 3,141,242, registered Sep. 12, 2006).
Respondent registered the <indeedch.com> domain name on October 3, 2020, and uses it to 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."
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 Panel finds that Complainant has rights in the INDEED mark under Policy ¶ 4(a)(i) through its registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <indeedch.com> domain name incorporates the INDEED mark, and adds the geographic abbreviation “CH” and the “.com” gTLD. These changes to a disputed domain name do not sufficiently distinguish it from the mark it incorporates. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). Therefore, the Panel finds that Respondent’s <indeedch.com> domain name is confusingly similar to Complainant’s INDEED mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 argues that Respondent lacks rights and legitimate interests in the <indeedch.com> domain name, as it is not commonly known by the disputed domain name and is not authorized to use the INDEED mark. The WHOIS information of record indicates the registrant utilized a privacy service. However, the registrar of the domain name confirmed that the disputed domain name was registered by “Nikolay Indahl / Bashundhara,” Respondent in this proceeding. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Tenza Trading Ltd. v. WhoisProtectService.net / PROTECTSERVICE, LTD., FA1506001624077 (Forum July 31, 2015) (“The WHOIS information lists ‘WhoisProtectService.net’ as the registrant of record for the disputed domain names. Accordingly, in the absence of a Response, there is no evidence to indicate that Respondent might be known by any of the domain names.”).
Complainant also argues that Respondent does not use the <indeedch.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, but rather diverts Internet users to a website that offers services directly competing with Complainant. The use of a disputed domain name to redirect users to a competing webpage is not a bona fide offer of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”). Complainant provides a screenshot of the resolving webpage for the disputed domain name showing that the page lists job openings in Switzerland. The Panel finds that this competing use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent registered and uses the <indeedch.com> domain name in bad faith as Respondent attempts to attract Internet users to its competing website for commercial gain. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services).
Complainant argues that, given its size and popularity in the job-searching space, and the fact that the Respondent uses the disputed domain name to list job openings, Respondent must have had actual knowledge of Complainant’s rights prior in the INDEED mark to registering the disputed domain. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <indeedch.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 2, 2021
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