Kenexa Corporation v. Indiaregisters.com c/o Web Master
Claim Number: FA0912001299687
Complainant is Kenexa Corporation (“Complainant”), represented by Paul
J. Kennedy, of Pepper Hamilton LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <kenexatechnologies.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 17, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 18, 2009.
On December 21, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <kenexatechnologies.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com 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 28, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 19, 2010 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@kenexatechnologies.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, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <kenexatechnologies.com> domain name is confusingly similar to Complainant’s KENEXA mark.
2. Respondent does not have any rights or legitimate interests in the <kenexatechnologies.com> domain name.
3. Respondent registered and used the <kenexatechnologies.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Kenexa Corporation, is a technology company that specializes in human resource maximization products and services. Complainant owns a trademark registration for the KENEXA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,632,896 issued October 8, 2002).
Respondent registered the <kenexatechnologies.com> domain name on August 30, 2008. Respondent’s disputed domain name resolves to Respondent’s commercial website offering technology products and services for companies in direct Competition with Complainant.
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 registered its KENEXA mark with the USPTO on
October 8, 2002 (Reg. No. 2,632,896).
The Panel finds Complainant’s registration sufficiently establishes its
rights in its KENEXA mark pursuant to Policy ¶ 4(a)(i). 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 also
Complainant contends that Respondent’s <kenexatechnologies.com> domain name is confusingly similar to Complainant’s KENEXA mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains Complainant’s mark in its entirety, adds he descriptive term “technologies,” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that descriptive terms, especially descriptive terms with an obvious relationship to a complainant’s business operation that are added to a complainant’s registered mark, create a confusing similarity between the disputed domain name and the mark. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)); see also Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., D2001-0075 (WIPO Mar. 6, 2001) (finding that the domain name <christiesauction.com> is confusingly similar to the complainant's mark since it merely adds the word “auction” used in its generic sense). In addition, the Panel finds that the addition of a gTLD is irrelevant in distinguishing a disputed domain name from an established mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and legitimate interests in the disputed domain name. When Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that in this case, Complainant has established a prima facie case and Respondent has failed to submit a Response to these proceedings. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”).
Complainant contends that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). The relevant WHOIS information identifies the registrant of the disputed domain name as “Indiaregisters.com c/o Web Master” and there is no evidence in the record to suggest that Respondent is otherwise commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also 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 was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent’s disputed domain name resolves to a website that offers
technology products and services geared for companies which directly competes
with Complainant’s business. The Panel
finds that Respondent’s competing use of the disputed domain name does not
represent 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).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Since Respondent registered the disputed domain
name on August
30, 2008, Respondent has used the disputed domain
name to offer competing technology products and services. The Panel finds that this use disrupts
Complainant’s business. The Panel
further finds that such a disruption constitutes bad faith registration under
Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA
593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating
Complainant’s mark to divert Complainant’s customers to Respondent’s competing
business. The Panel finds this diversion
is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iii).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding the respondent acted in bad faith by attracting
Internet users to a website that competes with the complainant’s business).
Respondent’s use of the confusingly similar disputed domain name in order to intentionally attract Internet users to its website by creating a strong likelihood of confusion with Complainant’s KENEXA mark and in order to offer technology products and services in direct competition with Complainant is further evidence of bad faith. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds this use of the disputed domain name constitutes bad faith registration and use. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant); see also State Fair of Tex. v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to the respondent’s website).
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 <kenexatechnologies.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: February 10, 2010
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