LinkedIn Corporation v. D-Max Limited
Claim Number: FA1111001413956
Complainant is LinkedIn Corporation (“Complainant”), represented by Gavin L. Charlston of Cooley LLP, New York, USA. Respondent is D-Max Limited (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <linkkedin.com>, registered with FABULOUS.COM PTY LTD.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 2, 2011; the National Arbitration Forum received payment on November 3, 2011.
On November 2, 2011, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <linkkedin.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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 8, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 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@linkkedin.com. Also on November 8, 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 6, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <linkkedin.com> domain name is confusingly similar to Complainant’s LINKEDIN mark.
2. Respondent does not have any rights or legitimate interests in the <linkkedin.com> domain name.
3. Respondent registered and used the <linkkedin.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LinkedIn Corporation, operates an online networking service for professionals. Complainant has registered the LINKEDIN mark with various international trademark authorities, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,074,242 registered March 28, 2006).
Respondent, D-Max Limited, registered the disputed domain name on August 3, 2007. The disputed domain name redirects users to a site Respondent is using to conduct a phishing scheme. The site prompts visitors to provide contact information, attempts to enroll the visitors in text message plans at a monthly charge, and downloads an adware toolbar to their Internet browsers.
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 the LINKEDIN mark pursuant to Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. No. 3,074,242 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 Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). The fact that Respondent operates in a country other than one where Complainant holds a trademark registration is irrelevant to this Policy ¶ 4(a)(i) analysis. See 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).
Respondent’s <linkkedin.com> domain name differs from Complainant’s mark by a single letter, adding only an extra “k”. This minor alteration, meant to capture a common misspelling, does not distinguish a disputed domain name under Policy ¶ 4(a)(i). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”). Furthermore, the addition of the generic top-level domain (“gTLD”) “.com.” cannot distinguish a disputed domain name, as gTLD’s are a requisite component of all domain names. See 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.”). The Panel finds that Respondent’s <linkkedin.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that the requirements of Policy ¶ 4(a)(i) have been satisfied.
It is now well established that Complainant shoulders the initial burden of presenting a prima facie case. Once this requirement has been satisfied, as it has been here, the burden shifts to Respondent to present a Response rebutting Complainant’s claims. 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.”). Where a Respondent fails to produce a Response, as here, some panels have inferred an admission that Respondent lacks rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). This Panel will examine the record to determine whether Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by the <linkkedin.com> domain name for the purposes of Policy ¶ 4(c)(ii). The WHOIS information identifies the domain name registrant as “D-Max Limited,” which the Panel finds to bear no resemblance to the disputed domain name. Complainant also states that it has not authorized Respondent to use its mark in any way, including the registration of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <linkkedin.com> domain name for the purposes of 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 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).
Complainant further alleges that Respondent’s use of the disputed domain name 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). Respondent uses the disputed domain name to conduct with a phishing scam, characterized by the intent to defraud victims into revealing personal information. Previous panels have agreed that such schemes cannot constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. 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 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). The Panel concludes that Respondent’s use of the disputed domain name does not constitute 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 the requirements of Policy ¶ 4(a)(ii) have been satisfied.
The mere presence of a phishing operation demonstrates bad faith registration and use of the disputed domain name. See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information”). 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). Thus, the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
Complainant also contends that Respondent could not have registered and used the disputed domain name without actual or constructive knowledge of Complainant and its rights in the LINKEDIN mark. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Nat. Arb. Forum Apr. 10, 2006) (stating that while mere constructive knowledge is insufficient to support a finding of bad faith, where the circumstances indicate that the respondent had actual knowledge of the complainant’s mark when it registered the domain name, panels can find bad faith); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). The Panel finds that Respondent had actual knowledge of Complainant's mark and, therefore, that Respondent has registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that the elements of Policy ¶ 4(a)(iii) have 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 <linkkedin.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 10, 2011
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