Manpower Inc. v. PLUTO DOMAIN SERVICES PRIVATE LIMITED.
Claim Number: FA0809001225940
Complainant is Manpower Inc. (“Complainant”), represented by Gary
H. Saposnik, of IpHorgan Ltd.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <manpowertemporaryservices.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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 22, 2008; the National Arbitration Forum received a hard copy of the Complaint on September 24, 2008.
On October 6, 2008, Lead Networks Domains Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <manpowertemporaryservices.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 October 16, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 5, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 10, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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 <manpowertemporaryservices.com> domain name is confusingly similar to Complainant’s MANPOWER mark.
2. Respondent does not have any rights or legitimate interests in the <manpowertemporaryservices.com> domain name.
3. Respondent registered and used the <manpowertemporaryservices.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a globally recognized employment firm whose
range of services include permanent, temporary, and contract employment
recruitment. Complainant’s world
headquarters is located in
Complainant first used the MANPOWER mark in association with employment services in 1948. The Complainant, Manpower, Inc., has five brands, two of which contain the MANPOWER mark (Manpower and Manpower Professional). Complainant maintains numerous registered marks with the United States Patent and Trademark Office (“USPTO”) including the MANPOWER mark (Reg. No. 672,305 issued January 6, 1959 and Reg. No. 921,701 issued October 5, 1971).
Respondent registered the <manpowertemporaryservices.com> domain name January 22, 2006. The disputed domain name resolves to a search engine containing listings of employment search terms. Respondent was originally listed in the WHOIS information as Private Whois Escrow Domains Private Limited (“PWED”). Subsequent to filing of the Complaint, Respondent changed to Pluto Domain Services Private Limited.
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 provided evidence of its registration of the MANPOWER mark with the USPTO. The Panel finds that this is sufficient evidence that Complainant has sufficient rights under the Policy ¶ 4(a)(i). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (holding that the complainants established rights in marks because the marks were registered with a trademark authority); see also Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)… .”).
Respondent’s disputed <manpowertemporaryservices.com> domain name contains Complainant’s MANPOWER mark, along with two generic terms associated with Complainant’s business, and the generic top-level domain “.com.” The Panel notes that generic top-level domains are considered irrelevant under Policy ¶ 4(a)(i). Moreover, the generic words “temporary” and “services” fail to connote any significant distinction, as Complainant’s mark is associated with these words through Complainant’s business. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s MANPOWER mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). The Panel finds that Complainant has asserted a sufficient prima facie case supporting this allegation, and therefore the burden shifts to the Respondent to provide evidence of its rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“[I]t is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Respondent’s disputed domain name resolves to a website featuring a search engine and links for third-parties. Respondent presumably receives referral fees for this advertisement placement. The Panel finds that Respondent is not making 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 a respondent’s use of a complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to that respondent’s 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a contested domain name was not 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)).
There is no evidence to suggest that Respondent is commonly known by the disputed domain name. The WHOIS information lists Respondent as “Private Whois Escrow Domains Private Limited.” The Panel concludes that Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that a respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent had no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that that respondent was commonly known by that domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a search engine with a listing of search terms. These links click through to Complainant’s competitors, thus suggesting that Respondent registered the disputed domain name intending to disrupt Complainant’s business. The Panel finds that this is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
The Respondent has created a likelihood of confusion as to Complainant’s possible association with or sponsorship of the disputed domain name for commercial gain. It follows that Respondent has engaged in bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use of a domain under Policy ¶ 4(b)(iv) where a respondent was diverting Internet users searching for a complainant to its own website, likely profiting from this activity); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
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 <manpowertemporaryservices.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.) Panelist
Dated: November 24, 2008
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