Robert Half International Inc. v. J. Richard Fraser
Claim Number: FA1808001801390
Complainant is Robert Half International Inc. (“Complainant”), represented by Robert Weisbein of Foley & Lardner LLP, New York, USA. Respondent is J. Richard Fraser (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <robertlnalf.com>, registered with Google LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 14, 2018; the Forum received payment on August 16, 2018.
On August 15, 2018, Google LLC confirmed by e-mail to the Forum that the <robertlnalf.com> domain name registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 August 20, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 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@robertlnalf.com. Also on August 20, 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 September 12, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is one of the world’s largest specialized employment staffing firms. Complainant uses its ROBERT HALF mark to promote its products and services and established rights in the mark through registration in the United States in 1981. Complainant and its ROBERT HALF marks have been prominently featured in advertisements and promotions throughout the world, including domestic and foreign publications and philanthropic events. Complainant has received many prestigious awards as a result of, in part, its services marketed and rendered under the ROBERT HALF marks, including being named to Fortune magazine’s “Most Admired Companies” list every year since 1998, being named by the Ethisphere Institute as one of the “World’s Most Ethical Companies” in 2013, and being #1 on Forbes’ lists of “America’s Best Professional Search Firms” in 2017.
Complainant alleges that the disputed domain name is confusingly similar to its ROBERT HALF mark as it merely replaces the letter “H” with the letters “L” and “N” and adds the generic top-level domain (“gTLD”) “.com” to the fully incorporated mark. The combination of the letters “l” and “n” are visually similar to the appearance of the lowercase letter “h,” and this justifies a finding of confusing similarity under the Policy. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its ROBERT HALF mark in any fashion. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “J. Richard Fraser” as the registrant. Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to resolve to an inactive website. Further, Respondent attempts to pass off as one of Complainant’s employees and fraudulently solicit payments from Complainant’s customers by using an e-mail address containing the disputed domain name. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and create confusion with Complainant’s mark for commercial gain by using the disputed domain name in connection with a fraudulent phishing scheme. Further, Respondent registered the disputed domain name with actual and constructive knowledge of Complainant’s rights in the mark. Moreover, Respondent failed to use the domain name in connection with an active website and engaged in typosquatting by registering a domain name containing a common typographical error. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ROBERT HALF uses it to market employment services.
Complainant’s rights in its mark date back to 1981.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent used the disputed domain name to send e-mails impersonating an employee of Complainant in order to attempt to obtain fraudulent bank transfers. The e-mails contained Complainant’s mark and logo.
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 disputed domain name is confusingly similar to Complainant’s ROBERT HALF mark as it merely replaces the letter “H” with the letters “L” and “N” and adds the gTLD “.com” to the fully incorporated mark. The addition of a gTLD to a misspelled version of a mark may not sufficiently distinguish a disputed domain name from a mark. Further, the combination of the letters “l” and “n” are visually similar to the appearance of the lowercase letter “h,” and this justifies a finding of confusing similarity under the Policy. See CDW LLC v. Netzer, FA1804001782406 (Forum May 15, 2018) (finding the domain name <cdvv.biz> confusingly similar to complainant’s CDW mark due, in part, to the fact that the double “v” was designed to mimic the letter “w”); Emerson Electric Co. v. Golden Humble, FA1805001787128 (Forum June 11, 2018) (finding the domain name <ernmersson.com> confusingly similar to complainant’s EMERSON mark due, in part, to the fact that the respondent replaced the letter “m” with the visually similar combination of the letters “r” and “n”); The Burton Firm, P.A. v. Dre, FA1803001779192 (Forum April 25, 2018) (finding the domain name <theburtonfirrn.com> confusingly similar to the complainant’s THE BURTON FIRM mark due, in part, to the fact that respondent replaced the letter “m” with the visually similar combination of the letters “r” and “n”). Accordingly, the Panel finds that the <robertlnalf.com> domain name is confusingly similar, in the sense of the Policy, to Complainant’s ROBERT HALF mark.
Complainant has not licensed or otherwise authorized Respondent to use its ROBERT HALF mark in any fashion. Respondent is not commonly known by the domain name: absent a response, WHOIS information can be used to support a finding that a respondent is not commonly known by a disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record lists “J. Richard Fraser” as the registrant. Therefore, the Panel may finds that Respondent is not commonly known by the disputed domain name.
Respondent uses an e-mail address containing the disputed domain name to pass off as one of Complainant’s employees and fraudulently solicit payments from Complainant’s customers. Specifically, Respondent uses the e-mail address nicole.lesher@robertlnalf.com, which impersonates one of Complainant’s employees, in connection with e-mails that instruct Complainant’s customers to submit funds via wire transfer. Complainant provided copies of e-mail correspondence between Respondent and Complainant’s customer, which indicate that the e-mail contains a “wire instructions” document that features the ROBERT HALF mark and logo. Use of a domain name to pass off as a complainant and conduct a fraudulent email phishing scheme may not be considered a legitimate Policy ¶¶ 4(c)(i) or (iii) use. See Protiviti Inc. v. Redfearn, FA1708001744465 (Forum Sept. 14, 2017) (finding no bona fide offering of goods or services nor a noncommercial or fair use when respondent used the subject domain name in an e-mail address to pass itself off as one of complainant’s executives in order to facilitate a fraudulent phishing scam); see also Lockheed Martin Corp. v. Barnes, FA1703001723479 (Forum May 10, 2017) (finding no bona fide offering of goods or services nor a noncommercial or fair use when respondent used the subject domain name in an e-mail address to pass itself off as complainant in an attempt to fraudulently acquire money and goods from email recipients). Accordingly, the Panel finds that Respondent failed to use the domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use. And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent impersonated Complainant to send fraudulent e-mails; this is evidence of bad faith registration and use. See Microsoft Corporation v. Terrence Green, FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Forum Oct. 6, 2015) (finding that Respondent’s use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii)); Brownell Travel, Inc. v. Troy Haas, FA 1589137 (Forum Dec. 20, 2014) (finding the use of the domain name to send emails impersonating the CEO to the Complainant’s Account Manager to attempt to commit fraud on the Complainant constituted bad faith registration and use under Policy ¶ 4(b)(iii)); The Hackett Group, Inc. v. Brian Herns/The Hackett Group, FA 1597465 (Forum Feb. 6, 2015) (finding that the use of emails associated with the domain name to send fraudulent emails contains the requisite competitive nature under Policy ¶ 4(b)(iii) and this is evidence of bad faith disruption). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶ 4(a)(iii).
Further Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: Respondent used Complainant’s mark and logo in its fraudulent e-mails, thus it knew of the mark. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <robertlnalf.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 12, 2018
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