Guild Education, Inc. v. Matthew McConnell / Name Redacted
Claim Number: FA2108001958309
Complainant is Guild Education, Inc. (“Complainant”), represented by Carolyn Juarez of Neugeboren O’Dowd PC, Colorado, USA. Respondent is Matthew McConnell / Name Redacted (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <guildeducation.us>, registered with NameCheap, 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.
September 3, 2021 as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 5, 2021; the Forum received payment on August 6, 2021.
On August 6, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <guildeducation.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On August 9, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 30, 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@guildeducation.us. Also on August 9, 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 September 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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.
PRELIMINARY ISSUE: PARTIAL REDACTION OF RESPONDENT INFORMATION
The business entity identified as the Registrant Organization of the disputed domain name contends that it has no connection with such name. Specifically, on July 1, 2021, Complainant’s counsel sent a demand letter to an email address that it developed corresponding to the Registrant Organization name listed by Respondent in the WHOIS record for the disputed domain name. On July 2, 2021, the IP Counsel for said Organization replied to Complainant’s counsel stating “This appears to be some scam where the registrant of the domain used my client’s address probably to confuse anyone trying to track him/her. The email
address and phone number in WHOIS are not my client’s.” Although not expressly requested by this Organization, the Panel has the authority to make a determination of whether redaction of a Respondent’s identity is proper. According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.
A. Complainant
Complainant, Guild Education, Inc., partners with employers and provides a platform to connect working adults with education and upskilling opportunities. Among its services are career coaching and coaching services in the field of college admissions. Complainant has common law rights in the GUILD and GUILD EDUCATION marks based upon its use of the marks in commerce since 2015. Complainant also owns the domain name <guildeducation.com> which it uses for its primary website and for email communication. It has also applied to register the GUILD mark with the United States Patent and Trademark Office (“USPTO”) on June 4, 2020. Respondent’s <guildeducation.us> domain name, registered on June 24, 2021, is confusingly similar to Complainant’s marks since it incorporates the marks in their entirety and only adds the country code top level domain (“ccTLD”) “.us.”
Respondent lacks rights and legitimate interests in the <guildeducation.us> domain name as Respondent is not associated or affiliated with Complainant’s college admissions and career coaching services. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent is using the domain name to impersonate Complainant and fraudulently obtain personal information from individuals by posing as one of Complainant’s employees and purporting to offer employment with Complainant.
Respondent registered or uses the <guildeducation.us> domain name in bad faith. Respondent seeks to pass itself off as Complainant as a part of an email phishing scheme. Respondent also uses false WHOIS information, listing the name and address of a third-party organization that is not associated with Respondent.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent in bad faith.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 and evidence 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 and supported 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 asserts common law rights in the GUILD and GUILD EDUCATION marks. Under Policy ¶ 4(a)(i), a complainant is not required to own a registered trademark prior to the registration of the disputed domain name if common law rights in the mark have been establish. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding that “The Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”) Common law rights in a mark may be demonstrated through evidence that the mark has acquired a secondary meaning. See Marquette Golf Club v. Al Perkins, 1738263 (Forum July 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including “longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising.”). In support of its claim, Complainant submits screenshots of its <guildeducation.com> website, both current and also dated June 4, 2020. From this, the Panel finds minimal but sufficient grounds upon which to hold that Complainant possesses common law rights to its GUILD and GUILD EDUCATION marks and that this element of Policy ¶ 4(a)(i) is satisfied even without evidence of a trademark registration.
Next, Complainant argues that Respondent’s <guildeducation.us> domain name is identical and/or confusingly similar to the GUILD and GUILD EDUCATION marks because it incorporates Complainant’s marks in their entirety and adds the “.us” ccTLD. Incorporating a mark in its entirety and adding the ccTLD “.us” most often renders the domain name identical to the mark. See MIGROS-GENOSSENSCHAFTS-BUND v. Tayfun yalcin, FA 1621184 (Forum July 8, 2015) (“In light of the fact that Respondent’s disputed domain name incorporates Complainant’s whole mark and merely adds the ccTLD “.us,” the Panel here finds that the disputed domain name is identical to Complainant’s MIGROS mark.”); see also Lifetouch, Inc. v. Fox Photographics, FA 414667 (Forum Mar. 21, 2005) (finding the respondent’s <lifetouch.us> domain name to be identical to the complainant’s LIFETOUCH mark because “[t]he addition of “.us” to a mark fails to distinguish the domain name from the mark pursuant to the [usTLD] Policy”). In view of the evidence presented, the Panel finds that the disputed domain name is identical or confusingly similar to Complainant’s asserted trademarks under Policy ¶ 4(a)(i).
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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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”).
The Panel finds that there is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, the Panel concludes that Respondent has failed to support Policy ¶ 4(c)(i).
Next, although Complainant does not argue this, the Panel will consider whether Respondent has rights or legitimate interests in the <guildeducation.us> domain name because Respondent is commonly known by the disputed domain name or is associated or affiliated with Complainant’s business. In considering this issue WHOIS information can be used to support a finding that a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). Additionally, lack of authorization to use a mark can be further evidence that a respondent is not commonly known by the mark. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”) Here, the WHOIS information revealed by the concerned Registrar identifies “Matthew McConnell” as the registrant of the disputed domain name. Additionally, Complainant asserts that Respondent is not associated or affiliated with Complainant, its services related to college admissions counseling, or its employment recruiting efforts. Respondent has not filed a Response or made any other submission in this case. Thus, the Panel finds no evidence upon which to conclude that Respondent is commonly known by the domain name under Policy ¶ 4(c)(iii).
Next, Complainant argues that Respondent does not have rights or legitimate interests in the <guildeducation.us> domain name because Respondent does not use the domain name for any bona fide offering of goods or services nor does it make a legitimate noncommercial or fair use thereof. Instead, Respondent is using the disputed domain name to impersonate Complainant and fraudulently seek personal information from individuals by falsely offering employment with Complainant. Use of a disputed domain name to send emails impersonating a complainant for fraudulent or phishing purposes clearly does not qualify as a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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).”); see additionally Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Here, Complainant provides screenshots of an email chain, showing that Respondent uses the email address “careers@guildeducation.us” and a signature block showing the name of an individual seeming to be an employee of Complainant’s followed by the phrase “Guild Education”. This evidence shows Respondent contacting an individual and attempting to obtain their personal information under the pretense of setting up an interview for employment with Complainant as a “Career Coach”. Further, the disputed domain name does not resolve to any website content. Respondent has not submitted any argument or evidence to explain its actions as anything other than a phishing attempt. As Complainant has made out a prima facie case that has not been rebutted by Respondent, upon a preponderance of the available evidence, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(ii) nor is it making a legitimate noncommercial or fair use thereof under Policy ¶ 4(c)(iv).
Complainant asserts that Respondent registered the <guildeducation.us> domain name with actual knowledge of Complainant’s rights in the GUILD and GUILD EDUCATION marks based on Respondent’s use of the disputed domain name to impersonate Complainant. Actual knowledge of a complainant’s trademark rights may form a solid foundation upon which to establish bad faith and may be inferred when a respondent uses an identical disputed domain name to pass itself off as a complainant. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 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 provides screenshots of the email chain that shows Respondent impersonating Complainant in a fraudulent job offer in order to collect personal information from an individual job applicant. The email uses an address incorporating the disputed domain name and a signature block that ends with the phrase “Guild Education”. From this, the Panel finds sufficient evidence that Respondent had actual knowledge of Complainant’s rights in the GUILD EDUCATION mark at the time that it registered the disputed domain name.
Complainant further argues that Respondent registered or uses the <guildeducation.us> domain name in bad faith because Respondent impersonates Complainant as a part of a phishing scheme via email. Use of a disputed domain name to impersonate a complainant in fraudulent emails for the purpose of phishing can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain based on trademark confusion under Policy ¶ 4(b)(iv). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA 1623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”); see also Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Forum Oct. 6, 2015) (finding that Respondent’s use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii).). The Panel notes that Complainant has provided screenshots of an email chain, which shows Respondent using the address “careers@guildeducation.us” and pretending to offer an interview for employment with Complainant to an individual job seeker by stating “We think you have terrific experience as a Career Coach. I’d like to invite you to interview with us” as well as a further message stating “We’re thrilled that you’d like to join us!” Each of the emails end with a signature block mentioning the name of a supposed employee of Complainant’s and the phrase “Guild Education”. From this, the Panel finds sufficient evidence to hold that bad faith under Policy ¶ 4(b)(iii) and/or (iv) has been established through Respondent’s impersonation and phishing activity.
Complainant also argues that Respondent’s bad faith is evidenced by the use of false WHOIS information. Per Policy ¶ 4(a)(iii), the use of false or misleading WHOIS information can indicate bad faith registration and use. See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA 1614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”). Here, Complainant alleges that when registering the domain name, Respondent listed the name and address of a third-party organization that is not associated with Respondent. On July 1, 2021, Complainant sent a cease-and-desist letter addressed to Respondent and to the Managing Director of the organization that Respondent listed in the domain registration. The organization responded the next day disclaiming any knowledge of, or association with Respondent. Respondent has otherwise not responded to Complainant’s cease-and-desist letter. In light of this use of false WHOIS information, the Panel finds further support for its conclusion that Respondent acted in bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <guildeducation.us> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: September 8, 2021
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