SnagAJob.com, Inc. v. Kwan Lee
Claim Number: FA1008001343636
Complainant is SnagAJob.com, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Kwan Lee (“Respondent”), Japan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sngajob.com>, registered with FABULOUS.COM PTY LTD.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 26, 2010.
On August 27, 2010, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <sngajob.com> domain name is/ registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant of the name. FABULOUS.COM PTY LTD. has verified that Respondent is bound by the FABULOUS.COM PTY 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 27, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 16, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@sngajob.com by e-mail. Also on August 27, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 29, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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" through submission of a Written Notice, as defined in Rule 1. 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 <sngajob.com> domain name is confusingly similar to Complainant’s SNAGAJOB.COM mark.
2. Respondent does not have any rights or legitimate interests in the <sngajob.com> domain name.
3. Respondent registered and used the <sngajob.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SnagAJob.com, Inc., offers online employment services including services that permit employers to list hourly employment opportunities for job seekers and allowing those job seekers to submit applications online. Complainant owns several trademark registrations with the United States Patent and Trademark Office ("USPTO") for its SNAGAJOB.COM mark (e.g., Reg. No. 2,477,984 issued August 14, 2001).
Respondent, Kwan Lee, registered the <sngajob.com> domain name on September 29, 2005. Respondent’s disputed domain name redirects Internet users to Complainant’s official <snagajob.com> website in breach of its affiliate agreement.
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 established rights in its SNAGAJOB.COM mark under Policy ¶ 4(a)(i) through its trademark registrations with the USPTO (e.g., Reg. No. 2,477,984 issued August 14, 2001). The Panel further finds that Complainant need not own a trademark registration within the boundries of Respondent’s resident country to establish rights under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant argues that the <sngajob.com> domain name is confusingly similar to Complainant’s SNAGAJOB.COM mark because the domain name simply removes the letter “a” from Complainant’s mark. The Panel agrees and finds that the disputed domain name is confusingly similar to Complainants mark under Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights and legitimate interests in the <sngajob.com> domain name. Complainant is required to make a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden shifts to Respondent to establish that it has rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). The Panel finds that Complainant has produced a prima facie case. Due to Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the <sngajob.com> domain name under Policy ¶ 4(a)(ii). 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.”). However, the Panel will review the evidence on record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complaint argues that Respondent is neither commonly known by the <sngajob.com> domain name, nor has Complainant given Respondent permission to use Complainant’s SNAGAJOB.COM mark. The WHOIS information identifies “Kwan Lee” as the registrant of the <sngajob.com> domain name, and there is no further evidence on record that Respondent is commonly known by the disputed domain name. The Panel finds that without evidence of Respondent being commonly known by the disputed domain name, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Complainant alleges within its Complaint that Respondent’s disputed domain name automatically redirects Internet users who type <sngajob.com> into their web browsers to Complainant’s official <snagajob.com> website in violation of the parties’ affiliate agreement. The Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to Complainant’s official website in violation of an affiliate agreement is 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 Sports Auth. Mich., Inc. v. Jablome, FA 124861 (Nat. Arb. Forum Nov. 4, 2002) (by signing up for the complainant’s affiliate program upon registering the domain name, which was a misspelling of the complainant’s mark, the respondent intended to use the domain name to generate profit at the complainant’s expense, thereby evidencing a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii)); see also Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (concluding that the respondent had no rights or legitimate interests in disputed domain names containing the complainant’s marks even though it was a part of the complainant’s affiliate program, as the affiliate agreement expressly stated that affiliates could not register domain names containing the CRICKET mark).
Complainant further argues that Respondent does not have rights and legitimate interests because it registered the <sngajob.com> domain name which is a misspelled version of Complainant’s SNAGAJOB.COM domain name. Previous panels have found that when a registrant engages in typosquatting by registering a confusingly similar domain name that contains a misspelled version of the respective complainant’s mark that such registration is evidence that the respondent does not have rights and legitimate interests in the domain name. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also 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’”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent is using the disputed domain name to redirect Internet users who type <sngajob.com> into their web browsers to Complainant’s official website in violation of Complainant’s affiliate agreement. Complainant argues that such use is evidence of Respondent’s bad faith registration and use of the disputed domain name because Respondent is benefiting commercially from its misappropriation of Complainant’s mark. The Panel agrees and finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program); see also Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program).
The Panel has already determined that Respondent’s registration of the <sngajob.com> domain name constitutes typosquatting. Complainant argues that Respondent’s use of typosquatting in its registration of the domain name constitutes bad faith registration and use. The Panel agrees and finds that Respondent’s registration and use of the disputed domain name that contains a misspelling of Complainant’s mark is further evidence of bad faith under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under 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 <sngajob.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: October 4, 2010
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