LinkedIn Corporation v. Jasper Yiparinavich
Claim Number: FA1301001479878
Complainant is LinkedIn Corporation (“Complainant”), represented by Morgan A. Champion of Cooley LLP, New York, USA. Respondent is Jasper Yiparinavich (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <linkendin.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.
Hon. Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 11, 2013; the National Arbitration Forum received payment on January 15, 2013.
On January 13, 2013, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <linkendin.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 January 18, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 7, 2013 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@linkendin.com. Also on January 18, 2013, 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 February 12, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. 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 issues 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
Policy ¶ 4(a)(i): Complainant’s rights and the confusing similarity of the domain name.
Policy ¶ 4(a)(ii): Respondent lacks rights and legitimate interests in the domain name.
Policy ¶ 4(a)(iii): Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For 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 claims that it has registered and owns USPTO trademarks in the LINKEDIN mark (e.g., Reg. No. 3,074,241 filed on May 5, 2003; registered on Mar. 29, 2006) and the LINKEDIN Service mark (Reg. No. 3,074,242 filed on May 5, 2003; registered on Mar. 28 2006). Complainant further avers that it has used the LINKEDIN mark continuously in commerce since the date the marks were filed with the USPTO in 2003. The Panel agrees that Complainant has established rights in its USPTO marks back to the May 5, 2003, date of filing. See 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 also agrees that Complainant’s USPTO registrations satisfy the Policy even though Respondent operates in Germany. 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 and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel therefore finds that Complainant has rights in the LINKEDIN mark under Policy ¶ 4(a)(i).
Complainant also contends that Respondent has merely added the letter “n” into the famous LINKEDIN mark. Complainant argues that the misspelling of the mark, or the addition of letters to the otherwise distinct LINKEDIN mark makes the <linkendin.com> domain name confusingly similar. The Panel also notes that Respondent has added the generic top-level domain (“gTLD”) “.com” to the disputed domain name. The Panel agrees that the addition of a gTLD is irrelevant under the Policy. 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). The Panel also agrees that by simply adding the letter “n,” Respondent does not differentiate the domain name from the mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive). The Panel finds that Respondent’s <linkendin.com> domain name is confusingly similar to the LINKEDIN mark under 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, the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent is not commonly known as the <linkendin.com> domain name. Complainant notes that Respondent’s WHOIS information makes no reference to the domain name. Complainant claims that there is no other indication that Respondent is known as the <linkendin.com> domain name. The WHOIS information lists one “Jasper Yiparinavich” as the registrant of the domain name. Previous panels have agreed that a respondent is not commonly known by a domain name when there is no evidence to suggest otherwise. 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). The Panel finds that Respondent is not commonly known by the <linkendin.com> domain name under Policy ¶ 4(c)(ii).
Complainant contends that Respondent is not using the domain name in conjunction with a bona fide offering of goods or services. Complainant argues that the domain name redirects Internet users to <reward-central.com>, which resolves to a website that copies aspects of Complainant’s LINKEDIN website. Complainant believes that Internet users are tricked into providing personal information to Respondent in order to receive a reward. Complainant asserts that Respondent is also offering Internet users text message plans for monthly charges. Complainant concludes that Respondent is most likely profiting both from the offering of adware, the charging of monthly fees to Internet user’s cell phone accounts, and the obtaining and reselling of Internet user’s personal information. The Panel notes that the <linkendin.com> domain name ultimately resolves to a website congratulating the Internet user for being “today’s 100,000th visitor” and proceeds to ask the Internet user which prize it desires to win, followed by several questions as to the general location of the Internet user and the Internet users gender. Previous panels have determined that the operation of a survey website purporting to offer prizes to Internet users is not a bona fide offering of goods, nor a legitimate noncommercial or fair use of the domain name. See Homer TLC, Inc. v. Wang, FA 1336037 (Nat. Arb. Forum Aug. 23, 2010) (holding that, where a disputed domain name purports to offer Internet users a gift card as compensation for filling out surveys, the respondent’s use of the disputed domain name amounts to neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). The Panel agrees and concludes that Respondent’s use of the domain to survey Internet users fails to make a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the disputed <linkendin.com> domain name.
Complainant also contends that Respondent is phishing for personal information. Complainant asserts that Respondent’s efforts to make the <linkendin.com> domain name appear similar in design to Complainant’s websites make it likely that Internet users will provide Respondent with personal information. The Panel also notes that the evidence provided illustrates that Respondent asks for the location and gender of the Internet user. Previous panels have agreed that a respondent lacks rights and legitimate interests in a domain name when the domain name is used in a scheme to fraudulently acquire personal information from Internet users. See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (holding 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” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)). The Panel agrees and concludes that Respondent’s phishing venture is another ground for not finding a Policy ¶ 4(c)(i) bona fide offering, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Complainant alleges that Respondent is engaging in typosquatting. Complainant bases this claim on Respondent’s registration and use of a domain name that varies from the LINKEDIN mark by a single letter. Previous panels have concluded that taking advantage of Internet users typographical errors via typosquatting destroys any merit to a respondent’s rights and legitimate interests in a disputed 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).”). The Panel finds that the <linkendin.com> domain name was registered and used in an act of typosquatting the LINKEDIN mark in violation of Policy ¶ 4(a)(ii).
Complainant has proven this element.
Complainant argues that Respondent is using the <linkendin.com> domain name to resolve to a website displaying a modified version of Complainant’s logos in order to confuse Internet users into believing that the disputed domain name is associated with Complainant. Complainant contends that Respondent gains commercial profits by convincing the confused Internet user into providing Respondent with his or her personal information. The Panel notes that the evidence provided by Complainant verifies that Respondent is seeking some level of personal information, namely the gender of the Internet user and whether the Internet user is accessing the website at home, work, school, or somewhere else. Previous panels agree that the use of a confusingly similar domain name, along with other confusingly similar designs on the resolving website, illustrate a bad faith use and registration of the domain name when the respondent is seeking to confuse Internet users into believing they are taking a survey to win prizes from a complainant. See Homer TLC, Inc. v. Wang, FA 1336037 (Nat. Arb. Forum Aug. 23, 2010) (finding that, where a disputed domain name offers incentives for the completion of surveys, “Internet users are likely to believe that such activities are sponsored by or affiliated with Complainant and is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv)”). The Panel agrees and finds that Respondent’s operation of a survey on the <linkendin.com> domain name constitutes a Policy ¶ 4(b)(iv) act of bad faith use and registration.
Complainant also argues that Respondent is using the disputed <linkendin.com> domain name to phish for Internet user’s personal information. Complainant contends that phishing is itself evidence of bad faith. The Panel notes that the evidence illustrates that Respondent is requesting the Internet user’s location and gender. Previous panels have held that a respondent registered and uses a confusingly similar domain name in bad faith when it is using the domain name for the purpose of inducing Internet users into providing their personal information. See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (determining 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). The Panel agrees and finds that Respondent’s registration and use of the <linkendin.com> domain name to acquire personal information from Internet users constitutes a bad faith act of phishing under Policy ¶ 4(a)(iii).
Complainant concludes by arguing that Respondent had actual knowledge of Complainant’s rights in the mark. Alternatively, Complainant asserts that Respondent is on constructive notice of Complainant’s rights by way of trademark registrations. The Panel finds that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). Because of the fame and unique qualities of the LINKEDIN mark the Panel finds that the Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
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 <linkendin.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: February 18, 2013
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