Indeed, Inc. v. Rina Lay
Claim Number: FA1801001765495
Complainant is Indeed, Inc. (“Complainant”), represented by Rebecca McCurry of Pirkey Barber PLLC, Texas, USA. Respondent is Rina Lay (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lndeed.com.co>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2018; the Forum received payment on January 4, 2018.
On Jan 05, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <lndeed.com.co> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 25, 2018 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@lndeed.com.co. Also on January 5, 2018, 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 February 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco, 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
Complainant contends as follows:
Complainant provides the world’s largest job site, with over 200 million unique visitors every month from over 60 different countries.
Complainant owns and has used its <indeed.com> domain name with an employment related search engine since at least 2004, and continues to do so.
Complainant owns trademark registrations for the INDEED and related marks with numerous trademark registries worldwide, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,141,242, registered on Sept. 12, 2006).
The <lndeed.com.co> domain name is confusingly similar to Complainant’s INDEED mark as the name comprises a misspelling of the INDEED marks plus the “.com” generic top-level domain (“gTLD”) and the “.co” country code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <lndeed.com.co> domain name. Respondent is not commonly known by the name and Complainant has not licensed or otherwise permitted Respondent to use its famous INDEED marks.
Respondent does not use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Rather, Respondent uses the <lndeed.com.co> domain name for the purpose of acquiring personal, business, and financial information from Complainant’s customers and potential customers.
Respondent registered and is using the <lndeed.com.co> domain name in bad faith. Respondent has previously engaged in a pattern of conduct which presents strong evidence of bad faith by registering <lndeed.ca>, <lndeed.co>, and <indeed.us.com> for the same fraudulent website and phishing scheme.
The domain name resolves to a website that reproduces Complainant’s website, prominently featuring the INDEED marks and logo, and includes links that redirect users to Complainant’s website and Complainant’s terms and services. Respondent has imitated Complainant’s website for the purpose of a phishing scheme, and the disputed domain name is intentionally misspelled for the purpose of typosquatting. Lastly, Respondent had actual knowledge of Complainant’s rights to its mark prior to registration due to the fame of the INDEED mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the INDEED mark through its registration of such mark with the USPTO.
Complainant’s rights in the INDEED mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent uses the disputed domain name in an attempt to pass itself off as Complainant in furtherance of offering competitive services and facilitating a phishing scheme designed to capture personal private data.
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(f), 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 (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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO registration for INDEED is sufficient to demonstrate its rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register …, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Respondent’s <lndeed.com.co> domain name contains a misspelling of Complainant’s INDEED trademark, substituting a lowercase “L” for the mark’s visually similar “I,” all followed by the top level domain names, “.com” and “.co”. The differences between the at-issue domain name and Complainant’s trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore the Panel concludes that Respondent’s <lndeed.com.co> domain name is confusingly similar to Complainant’s INDEED trademark. See Intelius, Inc. v. Hyn, FA 703175 (Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); see also, Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”); see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”);
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent is not authorized to use Complainant’s trademark in any capacity and as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Rina Lay.” Notably, the record before the Panel contains no evidence that might otherwise tend to prove that Respondent is commonly known by the <lndeed.com.co> domain name. The Panel therefore concludes that for the purposes of Policy ¶ 4(c)(ii) Respondent is not commonly known by the at-issue domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration); see also, Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (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).
Additionally, Respondent uses the <lndeed.net> domain name to attempt to pass itself off as Complainant in furtherance of a phishing scheme. Using the at-issue domain name in this manner is neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
Given the foregoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <lndeed.net> domain name was registered and used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances, as well as other circumstance, are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent has suffered multiple adverse findings in prior UDRP disputes including disputes involving <lndeed.ca>, <lndeed.co>, and <indeed.us.com>. Thereby, Complainant shows Respondent to have engaged in a pattern of domain name bad faith registration and use suggesting Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See Maurice Sporting Goods, Inc. v. Xiaodong Peng, FA1506001625928 (Forum Aug. 1, 2015) (finding that the respondent had engaged in bad faith pursuant to Policy ¶ 4(b)(ii) where the respondent had been unsuccessful in three previous UDRP cases).
Next as mentioned above regarding rights and legitimate interests, Respondent uses its confusingly similar <lndeed.com.co> domain name to pass itself off as Complainant. Respondent imitates Complainant’s website design and exploits Complainant’s INDEED mark to confuse internet users seeking Complainant into believing that the <lndeed.com.co> website is sponsored by Complainant. Respondent’s attempt to pass itself off as Complainant by using the confusingly similar domain name and by using Complainant’s trade dress on the <lndeed.com.co> website demonstrates bad faith registration and use of the at-issue domain name pursuant to Policy ¶ 4(b)(iv). See Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Further and as also mentioned above, Respondent uses the <lndeed.com.co> domain name and website to phish for proprietary information from third parties seeking Complainant. Such phishing by Respondent additionally indicates Respondent’s bad faith under the Policy. See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”); see also, Wells Fargo & Co. v. Maniac State, FA 608239 (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).
Next, Respondent’s intentional misspelling of Complainant’s trademark in the at-issue confusingly similar domain name shows that Respondent is typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name hoping that internet users will either inadvertently type the malformed string when searching for products or services associated with the target trademark or –as more likely in the instant case– will otherwise confuse the domain name with its target trademark when viewing the domain name. Here, Respondent modifies Complainant’s trademark by replacing its “I” with a look-a-like lower case “L” (or “l”). Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent registered <lndeed.com.co> knowing that Complainant had trademark rights in the INDEED mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark, from the overt misspelling of Complainant’s trademark in the domain name, and from Respondent’s use of the domain name to impersonate Complainant. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <lndeed.com.co> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lndeed.com.co> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 5, 2018
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