Kelly Properties, LLC v. VAIBHAV RAI
Claim Number: FA1707001738913
Complainant is Kelly Properties, LLC (“Complainant”), represented by Elizabeth Brock of Harness, Dickey & Pierce PLC, Michigan, USA. Respondent is VAIBHAV RAI (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kellyservicesconsultancy.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 7, 2017; the Forum received payment on July 7, 2017.
On July 10, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kellyservicesconsultancy.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 July 11, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 31, 2017 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@kellyservicesconsultancy.com. Also on July 11, 2017, 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 August 2, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is one of the largest personnel services companies in the world, with operations throughout the world.
Complainant uses the KELLY SERVICES mark to promote its services.
Complainant holds a registration for the KELLY SERVICES mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,092,774, registered September 2, 1997.
Respondent registered the domain name <kellyservicesconsultancy.com> on February 23, 2017.
The domain name is confusingly similar to Complainant’s KELLY SERVICES service mark.
Respondent has not been commonly known by the domain name.
Respondent has no connection or affiliation with Complainant.
Complainant has not authorized Respondent to use the KELLY SERVICES mark in any way.
Respondent has failed to use the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
Instead, Respondent uses the domain name to divert Internet users otherwise seeking Complainant to Respondent’s own resolving web page.
In doing so, Respondent attempts to pass itself off as Complainant.
Respondent lacks both rights to and legitimate interests in the domain name.
Respondent knew of Complainant’s rights in the KELLY SERVICES mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the KELLY SERVICES service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum August 11, 2015):
There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) ….
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here India). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <kellyservicesconsultancy.com> domain name is confusingly similar to Complainant’s KELLY SERVICES service mark. The domain name contains the mark in its entirety, with the addition of the descriptive term “consultancy,” which relates to an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described a UDRP complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish a respondent’s domain name from that complainant’s mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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 has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the challenged domain name <kellyservicesconsultancy.com>, and that Complainant has not authorized Respondent to use the KELLY SERVICES mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “VAIBHAV RAI,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum February 21, 2007) (concluding that a respondent had no rights to or legitimate interests in a disputed domain name as provided in Policy ¶ 4(c)(ii) where there was no evidence in the record indicating that that respondent was commonly known by the domain name). See also Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum August 28, 2014) (finding that a respondent was not commonly known by the <guardair.com> domain name and so failed to show that it had rights to or legitimate interests in that domain name under Policy ¶ 4(c)(ii), where the relevant WHOIS information listed only “Pablo Palermo” as registrant of that domain name). Finally, see Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its NAVISTAR mark in a domain name registration).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <kellyservicesconsultancy.com> domain name to divert Internet users seeking Complainant’s official website to Respondent’s own resolving web page, and that, in so doing, Respondent attempts to pass itself off as Complainant. In the circumstances here prevailing, we are comfortable in presuming that Respondent seeks to profit commercially from this employment of the domain name. As a consequence, we conclude that Respondent’s use of the domain name is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of it under ¶ 4(c)(iii) so as to confirm in Respondent rights to or legitimate interests in the domain name as provided in those sections of the Policy. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum September 30, 2003)
Respondent's … intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
See also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that a respondent’s unauthorized attempt to pass itself off as a UDRP complainant online, by means of a domain name which was confusingly similar to that complainant’s mark, was evidence that that respondent had no rights to or legitimate interests in that disputed domain name within the meaning of Policy ¶¶ 4(c)(i)-(iii)).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
The evidence adequately demonstrates that Respondent registered and uses the <kellyservicesconsultancy.com> domain name to divert Internet users seeking Complainant’s official website to Respondent’s own resolving web page, that, in so doing, Respondent attempts to pass itself off as Complainant, and that it has a profit motive for engaging in this behavior. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name.
See Monsanto Co. v. Decepticons, FA 101536 (Forum December 18, 2001) (finding, under Policy ¶ 4(b)(iv), that a respondent's use of a domain name that was confusingly similar to the mark of a UDRP complainant in order to misrepresent itself online as being that complainant thus to provide misleading information to the public supported a finding of bad faith).
It is also plain from the evidence that Respondent knew of Complainant and its rights in the KELLY SERVICES mark when Respondent registered the disputed <kellyservicesconsultancy.com> domain name. This further demonstrates Respondent’s bad faith in registering the domain name. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [and therefore bad faith registration] through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <kellyservicesconsultancy.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 4, 2017
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