Penmac Staffing Services, Inc. v. Kathryn Camp
Claim Number: FA1504001612637
Complainant is Penmac Staffing Services, Inc. (“Complainant”), represented by Maria v. Hardison of Tassan & Hardison, Virginia, USA. Respondent is Kathryn Camp (“Respondent”), Missouri, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <penmac.info>, registered with GoDaddy.com, LLC (R171-LRMS).
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 Forum electronically on April 1, 2015; the Forum received payment on April 6, 2015.
On April 2, 2015, GoDaddy.com, LLC (R171-LRMS) confirmed by e-mail to the Forum that the <penmac.info> domain name is registered with GoDaddy.com, LLC (R171-LRMS) and that Respondent is the current registrant of the name. GoDaddy.com, LLC (R171-LRMS) has verified that Respondent is bound by the GoDaddy.com, LLC (R171-LRMS) 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 April 8, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 28, 2015 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@penmac.info. Also on April 8, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On May 7, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
1. Respondent’s <penmac.info> domain name is identical to Complainant’s PENMAC mark.
2. Respondent does not have any rights or legitimate interests in the <penmac.info> domain name.
3. Respondent registered and uses the <penmac.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the PENMAC mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,874,054, registered Aug. 17, 2004). Complainant uses the PENMAC mark in connection with its Missouri-based employment agency.
Respondent registered the <penmac.info> domain name on March 21, 2014, and uses it to divert Internet traffic to a competing website.
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.”).
The Panel finds that Complainant’s registration of its PENMAC mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i). 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.”).
Respondent’s <penmac.info> domain name incorporates Complainant’s mark in its entirety and adds the top-level domain “.info.” Past panels have routinely held that the addition of a top-level domain does not serve to adequately distinguish the disputed domain name from the registered mark. See O Microsoft Corp. v. Zournas, FA 1093928 (Nat. Arb. Forum Dec. 10, 2007) (“the Panel finds that Respondent’s <windows.info> domain name is identical to Complainant’s WINDOWS mark as the addition of a gTLD is a necessary addition in the creation of any domain name and therefore an indistinguishing characteristic under Policy ¶ 4(a)(i).“). Thus, the Panel finds that the disputed domain name is identical to Complainant’s mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 asserts that Respondent has no rights or legitimate interests in the disputed domain name, and is not commonly known by the disputed domain name. The WHOIS information lists “Kathryn Camp” as the registrant of record. Complainant states that it has never licensed Respondent to use Complainant’s trademark. The Panel finds that Complainant’s contentions are sufficient to establish Respondent’s lack of rights to the disputed domain name under Policy ¶ 4(c)(ii). See 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).
Complainant argues that Respondent’s lack of rights or legitimate interests in the <penmac.info> domain name is further evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Complainant alleges that Respondent uses the <penmac.info> domain name to redirect Internet traffic to the <indiestaffing.com/kc/go.html> domain name, which features a “work at home” scheme. When users click on a link that states, “Click here to register begin working today,” they are led to “Project Payday,” another alleged scam. Further, Complainant claims that Respondent has posted links to the disputed domain name on Craigslist in an attempt to attract potential job “applicants.” Previous panels have found that diverting Internet traffic to a competing website is not bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site). The Panel finds that Respondent’s competing use of the disputed domain name is not a noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii), and is not a bona fide offering of goods or services.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent uses the domain name to intentionally attract, for commercial gain, Internet users through a likelihood of confusion with Complainant’s mark as to source, sponsorship, affiliation, or endorsement. Past panels have found bad faith registration and use where a respondent uses a mark confusingly similar to a complainant’s to attract consumers and commercially profit from that confusion. See MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme). As Respondent likely seeks financial gain through the use of Complainant’s registered mark, the Panel finds that Respondent has engaged in bad faith use under Policy ¶ 4(b)(iv).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <penmac.info> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 11, 2015
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