LinkedIn Corporation v. Domain Tech Enterprises / Domain Administrator
Claim Number: FA1110001413146
Complainant is LinkedIn Corporation (“Complainant”), represented by Gavin L. Charlston of Cooley LLP, New York, USA. Respondent is Domain Tech Enterprises / Domain Administrator (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <linedin.com>, <linnkedin.com>, and <lonkedin.com>, registered with Power Brand Center Corp.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 26, 2011; the National Arbitration Forum received payment on October 27, 2011.
On October 27, 2011, Power Brand Center Corp. confirmed by e-mail to the National Arbitration Forum that the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names are registered with Power Brand Center Corp. and that Respondent is the current registrant of the names. Power Brand Center Corp. has verified that Respondent is bound by the Power Brand Center Corp. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 1, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 21, 2011 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@linedin.com, postmaster@linnkedin.com, and postmaster@lonkedin.com. Also on November 1, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 November 30, 2011, 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names are confusingly similar to Complainant’s LINKEDIN mark.
2. Respondent does not have any rights or legitimate interests in the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names.
3. Respondent registered and used the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LinkedIn Corporation, provides online networking service for professionals under its LINKEDIN mark. Complainant provides evidence of its trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its LINKEDIN mark (e.g., Reg. No. 3,074,241 filed May 5, 2003; registered March 28, 2006).
Respondent, Domain Tech Enterprises / Domain Administrator, registered the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names no earlier than September 25, 2004. The <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names resolve to <surveyrewardpanel.com> that contains Complainant’s LINKEDIN mark and feel of Complainant’s official website. When an Internet user enters the <surveyrewardpanel.com> website, an automated voice message informs that Internet user that he or she has been selected to take part in a survey. After answering the survey questions, Internet users are asked to provide their address and phone numbers and are also offered further surveys, which are delivered by text message and charged to Internet users. Based on this use, Respondent is using the disputed domain names to engage in a phishing scheme.
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 Policy ¶ 4(a)(i) rights in its LINKEDIN mark, dating back to May 5, 2003, based on Complainant’s trademark registrations with the USPTO (e.g., Reg. No. 3,074,241 filed May 5, 2003; registered March 28, 2006). 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”).
The Panel further determines that Respondent’s <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names are confusingly similar to Complainant’s LINKEDIN mark under Policy ¶ 4(a)(i) because the disputed domain names contain the generic top-level domain (“gTLD”) “.com” and common misspellings of Complainant’s LINKEDIN mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i).); see also 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 Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
Thus, the Panel finds Policy ¶ 4(a)(i) is satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in any of the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names. The burden shifts to Respondent to prove it does have rights or legitimate interests when Complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). The Panel finds Complainant made a sufficient prima facie case. Respondent’s failure to respond to the Complaint allows the Panel to infer that Respondent does not have rights or legitimate interests in the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). 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.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
The Panel finds that Respondent is not commonly known by the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names pursuant to Policy ¶ 4(c)(ii) because the WHOIS information lists “Domain Tech Enterprises / Domain Administrator” as the registrant of the disputed domain names, Complainant has not authorized or licensed Respondent to use its LINKEDIN mark, and Respondent has failed to contradict any of this evidence. 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 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).
As Respondent’s disputed domain names resolve to the same website, <surveyrewardpanel.com>, which attempts to trick Internet users in to entering personal information, signing up for text messaging plans, and downloading adware tools, the Panel concludes that Respondent is making neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names. See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
Thus, the Panel finds Policy ¶ 4(a)(ii) is satisfied.
The Panel infers that Respondent commercially benefits from its phishing scheme. As the Panel determines that Respondent’s <surveyrewardpanel.com> website includes Complainant’s LINKEDIN mark and that the disputed domain names are confusingly similar to Complainant’s LINKEDIN mark, the Panel finds that Respondent registered and uses the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
Moreover, as Respondent is attempting to conduct a phishing scheme, the Panel concludes that Respondent registered and uses the <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names in bad faith under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name).
Thus, the Panel finds Policy ¶ 4(a)(iii) is 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 <linedin.com>, <linnkedin.com>, and <lonkedin.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 14, 2011
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