Water Environment Federation v. wendy scott / 1105641qaqpd
Claim Number: FA1204001437794
Complainant is Water Environment Federation (“Complainant”), represented by Gregory Golla of Merchant & Gould P.C., Minnesota, USA. Respondent is wendy scott / 1105641qaqpd (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wefjobs.org>, registered with Bottle Domains, Inc. (R1349-LROR).
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 3, 2012; the National Arbitration Forum received payment on April 3, 2012.
After numerous requests, the Registrar, Bottle Domains, Inc. has not confirmed to the National Arbitration that the <wefjobs.org> domain name is registered with Bottle Domains, Inc. or that the Respondent is the current registrant of the name. Registrar’s non-compliance has been reported to ICANN. The FORUM’s standing instructions are to proceed with this dispute.
On April 27, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 2012 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@wefjobs.org. Also on April 27, 2012, 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 May 21, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 name be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent did not submit a Response.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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."
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.
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.”).
Complainant provides the Panel with a copy of its USPTO trademark registration for its WEF mark (Reg. No. 2,087,832 registered August 12, 1997). Prior panels have found that a USPTO trademark registration is evidence that a complainant holds rights in a mark. See 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.”); see also Disney Enters., Inc. v. Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006) (finding that the complainant’s registration of the DISNEY trademark with the USPTO prior to the respondent’s registration of the disputed domain name is sufficient to prove that the complainant has rights in the mark pursuant to Policy ¶ 4(a)(i)). Therefore, the Panel finds that Complainant’s USPTO trademark registration is evidence that Complainant holds rights in its WEF mark for the purposes of Policy ¶ 4(a)(i).
Complainant asserts that Respondent’s <wefjobs.org> domain name is confusingly similar to Complainant’s WEF mark. Complainant contends that the disputed domain name contains Complainant’s entire WEF mark in combination with the generic term “jobs.” Prior panels have found that combining a complainant’s mark with a generic term does not adequately distinguish a disputed domain name from a mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the <westfieldshopping.com> domain name confusingly similar because the WESTFIELD mark was the dominant element). The Panel therefore finds that Respondent’s <wefjobs.org> domain name is confusingly similar to Complainant’s WEF mark pursuant to Policy ¶ 4(a)(i).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent is not commonly known by the disputed domain name and has not been authorized to use the disputed domain name. The Panel notes that the WHOIS information identifies “wendy scott” as the current registrant of the domain name. Prior panels have held that a respondent is not commonly known by a disputed domain name when the WHOIS information and all other evidence on the record fails to establish that respondent is commonly known by the disputed domain name. 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 M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). The Panel therefore concludes that Respondent is not commonly known by the <wefjobs.org> domain name.
Complainant alleges that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant contends that the disputed domain name resolves to a website containing pay-per-click links that redirect Internet users to unrelated websites. Prior panels have held that using a disputed domain name to host pay-per-click links to unrelated websites is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). Accordingly, the Panel finds that Respondent is not using the disputed domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Complainant further alleges that Respondent is using the disputed domain name to phish for Internet users’ personal information. Complainant contends that Respondent operates a fraudulent scheme by allowing Internet users to apply for jobs, to which Respondent replies with a job offer. Complainant contends that this use of the disputed domain name to obtain Internet user’s personal information is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. While not a specific element under Policy ¶ 4(a)(ii), prior panels have held that phishing for personal information is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See 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); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. Langham, FA 1345734 (Nat. Arb. Forum Oct. 21, 2010) (holding that the use of a disputed domain name to acquire personal information from Internet users that believe they are signing up for a gift card constitutes phishing, which evidences that the respondent lacks rights and legitimate interests in the domain name). The Panel finds adequate evidence of phishing, which is evidence that Respondent is not using the disputed domain name for 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).
Complainant has proven this element.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith. Complainant alleges that the disputed domain name creates a likelihood of confusion because of its confusing similarity. Complainant further asserts that this confusing similarity, together with the fact that Respondent hosts pay-per-click links at the disputed domain name that redirect Internet users to unrelated sites, suggests that Respondent is using the disputed domain name for financial gain. Prior panels have found that hosting pay-per-click links to unrelated sites is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). The Panel finds that Respondent is commercially benefitting from creating a likelihood of confusion, and finds bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Complainant also contends that Respondent is using the disputed domain name to phish for Internet user’s personal information. Complainant contends that Respondent operates a fraudulent scheme by allowing Internet users to apply for jobs, to which Respondent replies with a job offer. Complainant contends that this use of the disputed domain name to obtain job applicant’s personal information is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). While not a specific element of Policy ¶ 4(a)(iii), prior panels have held that phishing is evidence of bad faith registration and use. 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 Homer TLC, Inc. v. Seed of Abraham Christian School, FA 1358569 (Nat. Arb. Forum Jan. 3, 2011) (determining that the respondent registered and used the disputed domain name in bad faith as the respondent attempted to acquire the personal information of Internet users accessing the resolving website). The Panel finds that Respondent was phishing for personal information, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
Complainant asserts that its trademark registrations for the WEF mark existed well before the registration of the disputed domain name. Complainant argues that Respondent has actual and/or constructive knowledge of Complainant's rights in the mark. Complainant contends that Respondent’s actual knowledge of the mark is evidenced by the fact that Respondent needed to know of the WEF mark in order to offer jobs under the WEF mark. The Panel finds that, due to Respondent’s use of Complainant's mark, Respondent had actual knowledge of the mark and Complainant's rights and holds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Nat. Arb. Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); 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).
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <wefjobs.org> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: May 23, 2012
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