SnagAJob.com, Inc. v. McLeod Capital Corp.
Claim Number: FA0812001239003
Complainant is SnagAJob.com, Inc. (“Complainant”), represented by Robert
L. Brooke, of Troutman Sanders LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <jobsnagger.com>, registered with Godaddy.com, Inc.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 17, 2008; the National Arbitration Forum received a hard copy of the Complaint on December 17, 2008.
On December 19, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <jobsnagger.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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 December 30, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 20, 2009 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@jobsnagger.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 27, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <jobsnagger.com> domain name is confusingly similar to Complainant’s SNAGAJOB.COM mark.
2. Respondent does not have any rights or legitimate interests in the <jobsnagger.com> domain name.
3. Respondent registered and used the <jobsnagger.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SnagAJob.com, Inc., founded in 2000, uses its SNAGAJOB.COM mark in connection with its <www.snagajob.com> website for its job placement service for part-time and full-time hourly jobs. Complainant holds several registrations of its mark with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 2,477,984 August 14, 2001).
Respondent registered the <jobsnagger.com> domain name on January 24, 2003. The disputed domain name resolves to a competitive website that contains job listings.
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.
The Panel finds that Complainant has sufficiently established rights in the SNAGAJOB.COM mark under Policy ¶ 4(a)(i) because it holds a registration of the mark with the USPTO. See 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.”); see Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent’s <jobsnagger.com>
domain name contains the main components of Complainant’s SNAGAJOB.COM mark,
reverses the order of those components, and merely adds the generic top-level
domain (“gTLD”) “.com.” The Panel finds
that the inclusion and reversal of order of Complainant’s mark elements with
the addition of a gTLD does not distinguish the disputed domain from
Complainant’s mark, and thus, finds that the <jobsnagger.com>
domain name is confusingly similar to Complainant’s SNAGAJOB.COM under Policy ¶ 4(a)(i). See Playboy Enters. v. Movie Name Co.,
D2001-1201 (WIPO Feb. 26, 2002) (finding the domain name
<channelplayboy.com> confusingly similar to the mark THE PLAYBOY
CHANNEL); see also
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In the beginning, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the <jobsnagger.com> domain name. The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it 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. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also 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).”).
Furthermore, because Respondent has failed to respond to Complainant’s allegations, the Panel may presume that Respondent lacks rights and legitimate interests. However, the Panel will still analyze the record under Policy ¶ 4(c). See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”).
The disputed domain name resolves to a competitive website that contains job listings. The Panel finds that this is a diversion of Internet users to a competitive website, and is therefore 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). See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
In addition, Respondent is listed in the WHOIS information as “McLeod Capital Corp.,” which does not indicate that it is commonly known by the <jobsnagger.com> domain name. Respondent has not offered any evidence to indicate otherwise. The Panel thus finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the confusingly similar <jobsnagger.com> domain name to directly compete with Complainant
through its use of competing job listing hyperlinks. The Panel finds that Respondent’s conduct
diverts Internet users to a competing website, disrupts Complainant’s business,
and constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See 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).”); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000)
(finding that the respondent has diverted business from the complainant to a
competitor’s website in violation of Policy ¶ 4(b)(iii)).
Moreover,
the Panel finds that Respondent’s use of the disputed domain name with the
aforementioned hyperlinks creates a likelihood of confusion as to Complainant’s
affiliation with the <jobsnagger.com>
domain name and its corresponding
website, and is evidence of bad faith
registration and use 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 <jobsnagger.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: February 10, 2009
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