national arbitration forum

 

DECISION

 

Habitat for Humanity International, Inc. v. Colin Shields

Claim Number: FA0904001260203

 

PARTIES

Complainant is Habitat for Humanity International, Inc. (“Complainant”), represented by Alex Fonoroff, of Kilpatrick Stockton, LLP, Georgia, USA.  Respondent is Colin Shields (“Respondent”), Virginia, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <habitatcareers.org>, registered with Abacus America Inc.

 

PANEL

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.

 

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on April 29, 2009; the National Arbitration Forum received a hard copy of the Complaint on April 30, 2009.

 

On May 1, 2009, Abacus America Inc. confirmed by e-mail to the National Arbitration Forum that the <habitatcareers.org> domain name is registered with Abacus America Inc. and that Respondent is the current registrant of the name.  Abacus America Inc. has verified that Respondent is bound by the Abacus America 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 May 11, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 1, 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@habitatcareers.org by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On June 3, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <habitatcareers.org> domain name is confusingly similar to Complainant’s HABITAT FOR HUMANITY mark.

 

2.      Respondent does not have any rights or legitimate interests in the <habitatcareers.org> domain name.

 

3.      Respondent registered and used the <habitatcareers.org> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Habitat for Humanity International, Inc., is a nonprofit organization founded in 1976 for the purpose of building affordable homes for low income individuals and families.  Complainant holds several registrations of the HABITAT FOR HUMANITY mark with trademark authorities worldwide, including the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 2,169,719 issued June 30, 1998).

 

Respondent registered the <habitatcareers.org> domain name on March 23, 2009.  The disputed domain name resolves to website showing a career opportunity with Complainant as a “Regional Donation Coordinator.”  The resolving website displays Complainant’s logo along the top of the page and generally copies the lay-out of Complainant’s website resolving from the <habitat.org> domain name.  The application displayed on the website asks for personal information, including name, address, e-mail, cell phone, and driver’s license number.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant, by registering its mark with the USPTO, has established its rights in the HABITAT FOR HUMANITY mark pursuant to Policy ¶ 4(a)(i).  See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i)); see also Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)).

 

Respondent’s <habitatcareers.org> domain name consists of the first word of Complainant’s HABITAT FOR HUMANITY mark, the word “careers,” and the generic top-level domain (gTLD) “.org.”  The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access the complainant’s website, think that an affiliation of some sort exists between the complainant and the respondent, when in fact, no such relationship would exist); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Pursuant to Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no rights or legitimate interests in the <habitatcareers.org> domain name.  If the Panel finds that Complainant’s allegations establish such a prima facie case, the burden shifts to Respondent to show that it does indeed have rights or legitimate interests in the disputed domain name pursuant to the guidelines in Policy ¶ 4(c).  The Panel finds that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate interests in the <habitatcareers.org> domain name pursuant to Policy ¶ 4(a)(ii).  Since no response was submitted in this case, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name.  However, the Panel will still examine the record in consideration of the factors listed in Policy ¶ 4(c).  See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); 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).”). 

 

The Panel finds no evidence in the record suggesting that Respondent is commonly known by the <habitatcareers.org> domain name.  Complainant asserts that Respondent has no license or agreement with Complainant authorizing Respondent to use the HABITAT FOR HUMANITY mark, and the WHOIS information identifies Respondent as “Colin Shields.”  Thus, Respondent has not established rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).  See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).

 

The <habitatcareers.org> domain name resolves to a website that fraudulently purports to be Complainant’s official career opportunity website.  Respondent is attempting to pass itself off as Complainant.  The Panel finds Respondent is using the website to phish personal information from people wishing to work for Complainant.  A phishing scheme is a practice “intended to defraud consumers into revealing personal and proprietary information.” Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004).  The Panel presumes Respondent is attempting to extract this personal information from unsuspecting Internet users in order to defraud them.  The Panel finds this use to constitute neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)); see also Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

The Panel infers that the disputed domain name is being used as part of a phishing scheme.  Respondent is attempting, or possibly has, commercially gained from the personal information gained through its use of the confusingly similar <habitatcareers.org> domain name.  The Panel finds this constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).

 

To engage in this phishing scheme, Respondent is attempting to pass itself off as Complainant by imitating Complainant’s official website.  This demonstrates bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb. Forum Mar. 13, 2002) (finding that where the complainant’s mark was appropriated at registration, and a copy of the complainant’s website was used at the domain name in order to facilitate the interception of the complainant’s customer’s account information, the respondent’s behavior evidenced bad faith use and registration of the domain name).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <habitatcareers.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  June 16, 2009

 

 

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