Robert Half International Inc. v. LAKSH INTERNET SOLUTIONS PRIVATE LIMITED
Claim Number: FA0807001213844
Complainant is Robert Half International Inc. (“Complainant”), represented by Britton
Payne, of Foley & Lardner LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <accoutemps.com>, registered with Lead Networks Domains Pvt. Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
James A Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 3, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 7, 2008.
On July 28, 2008, Lead Networks Domains Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <accoutemps.com> domain name is registered with Lead Networks Domains Pvt. Ltd. and that Respondent is the current registrant of the name. Lead Networks Domains Pvt. Ltd. has verified that Respondent is bound by the Lead Networks Domains Pvt. Ltd. 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").
On August
6, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 26, 2008
by which Respondent could file a response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent's registration as technical, administrative and billing contacts,
and to postmaster@accoutemps.com by
e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 04, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary 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." 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 <accoutemps.com> domain name is confusingly similar to Complainant’s ACCOUNTEMPS mark.
2. Respondent does not have any rights or legitimate interests in the <accoutemps.com> domain name.
3. Respondent registered and used the <accoutemps.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Robert Half International Inc., has provided
employment and staffing services throughout the
Respondent registered the <accoutemps.com> domain name on November 26, 2001, and is currently using the disputed domain name to resolve to a website that advertises links for Complainant’s direct competitors.
Respondent has been the respondent in several other UDRP decisions wherein the disputed domain names were transferred to the respective complainants in those cases. See, e.g., CafePress.com, Inc. v. LAKSH INTERNET SOLUTIONS PRIVATE LTD., FA 1190323 (Nat. Arb. Forum Jul. 24, 2008); see also Baylor Univ. v. Laksh Internet Solutions Private Ltd., FA 1189976 (Nat. Arb. Forum Jul. 24, 2008).
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 has established rights in the ACCOUNTEMPS mark through registration with the USPTO pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <accoutemps.com>
domain name omits the “n” in the ACCOUNTEMPS mark, and merely adds the generic
top-level domain “.com.” The Panel finds
that neither of these alterations sufficiently distinguishes the disputed
domain name from the mark under Policy ¶ 4(a)(i). Additions of top-level domains are irrelevant
under a Policy analysis. Moreover, the
omission of a letter from a mark to capitalize on the typographical errors of
Internet users fails to provide sufficient distinction. Therefore, the Panel finds that the disputed
domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Trip Network
Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the addition of a gTLD, whether it
be “.com,” “.net,” “.biz,” or “.org,” is irrelevant to a Policy ¶ 4(a)(i)
analysis); see also
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent receives the burden of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its burden, and therefore Respondent must demonstrate its rights or legitimate interests under Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
There is no evidence before the Panel that allows the
conclusion that Respondent is commonly known by the disputed domain name. The WHOIS information lists Respondent as “LAKSH INTERNET SOLUTIONS PRIVATE LIMITED,” and
Respondent has failed to provide contrary evidence. Therefore, the Panel finds that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21,
2007) (concluding a respondent has no rights or legitimate interests in a
disputed domain name where there is no evidence in the record indicating that
the respondent is commonly known by the disputed domain name); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
Respondent’s disputed domain name
resolves to a website that displays links and advertisements for Complainant’s
direct competitors. Complainant alleges,
and the Panel so infers, that Respondent receives commercial benefit through
the receipt of referral fees for the advertisements listed. The Panel finds that Respondent has not
created 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 Summit
Group, LLC v. LSO, Ltd., FA
758981 (Nat. Arb. Forum
Sept. 14, 2006) (finding that the respondent’s use of the complainant’s
LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website
for commercial gain does not constitute either 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 also ALPITOUR S.p.A. v. balata inc, FA
888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly
similar <viaggidea.com> domain
name to operate a website that
features links to various commercial websites from which Respondent presumably
receives referral fees….is neither a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair
use pursuant to Policy ¶ 4(c)(iii).”).
Respondent’s confusingly
similar disputed domain name incorporates Complainant’s mark while merely
omitting the “n.” The practice of
registering domain names with such typographical errors is intentional, in that
the registrant seeks to divert Internet users committing the same errors to the
website operated or chosen by Respondent.
The example in this case is textbook: Internet
users omitting the letter “n” will be redirected away from their presumed
destination, and unceremoniously rerouted to Respondent’s website, which is
designed solely and primarily to confront the confounded Internet users with
the competitive advertisements. The
Panel finds that Respondent’s use of typosquatting in the instant case
constitutes evidence that Respondent lacks 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been the respondent in several other UDRP decisions wherein the disputed domain names were transferred to the respective complainants in those cases. See, e.g., CafePress.com, Inc. v. LAKSH INTERNET SOLUTIONS PRIVATE LTD., FA 1190323 (Nat. Arb. Forum Jul. 24, 2008); see also Baylor Univ. v. Laksh Internet Solutions Private Ltd., FA 1189976 (Nat. Arb. Forum Jul. 24, 2008). The Panel finds that this demonstrates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005 (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another Policy proceeding against the respondent to find that “this is part of a pattern of such registrations”); see also Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
The Panel finds that Respondent’s use of the disputed domain name to host a website with advertisements for third-parties in direct competition with Complainant constitutes disruption of Complainant’s business, which therefore demonstrates Respondent’s bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
The Panel also finds that Respondent has intentionally attempted to attract Internet users for commercial gain via the confusingly similar disputed domain name and corresponding website, which features click-through advertisements. The Panel also finds that this constitutes bad faith registration and use on the part of Respondent under Policy ¶ 4(b)(iv). 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 Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Finally, the Panel finds that Respondent’s engagement in typosquatting evidences Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) 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 <accoutemps.com> domain name be TRANSFERRED from Respondent to Complainant.
James A Crary, Panelist
Dated: September 18, 2008
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