Indeed, Inc. v. Jason Evans
Claim Number: FA1809001809031
Complainant is Indeed, Inc. (“Complainant”), represented by Anne Krarup of Indeed, Inc., Texas, USA. Respondent is Jason Evans (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lndeed.cc>, registered with NameSilo, LLC.
The undersigned certifies that he she 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 September 26, 2018; the Forum received payment on September 26, 2018.
On September 28, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <lndeed.cc> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 October 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 22, 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.cc. Also on October 1, 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 October 25, 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 provides the world’s largest job site with over two-hundred million unique visitors every month from over sixty different countries. Complainant has rights in the INDEED mark based upon its registration of the mark in the United States in 2006.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s mark because Respondent includes the entire INDEED mark in the disputed domain name which contains an intentional misspelling: the replacement of the letter “I” with the letter “L”, which, in lower case, looks like “I”. Furthermore, Respondent includes the “.cc” country code top-level domain (“ccTLD”) in the disputed domain name.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s mark in any way. Furthermore, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. Instead, Respondent attempts to imitate Complainant’s website for the purpose of acquiring personal and business information from Complainant’s current and potential customers.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to commercially gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Furthermore, Respondent attempts to phish for personal and business information from Complainant’s current and potential customers. Finally, Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark INDEED and uses it to market employment services.
Complainant’s rights in its mark date back to 2006.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent used the disputed domain name to imitate Complainant’s website for the purpose of acquiring personal and business information from Complainant’s current and potential customers. The resolving website displayed Complainant’s trademark.
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 mark because it includes the entire mark in the disputed domain name with an intentional misspelling plus a ccTLD. The misspelling is the replacement of the letter “I” with the letter “L”, which, in lower case, looks like “I”. The misspelling of complainant’s mark in a disputed domain name may not be sufficient to negate a finding of confusing similarity under Policy ¶ 4(a)(i). See Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) (“The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.”). Additionally, the addition of a ccTLD is irrelevant for Policy ¶ 4(a)(i) purposes. See Transamerica Corporation v. Whois Foundation, FA 1700616 (Forum Dec. 5, 2016) (“For the purposes of comparison of the domain name and the trademark, it is agreed by panelists that ccTLDs can generally be disregarded”). Accordingly, under a Policy ¶ 4(a)(i) analysis, the Panel finds that the disputed <lndeed.cc> domain name is confusingly similar to Complainant’s INDEED mark.
Respondent is not authorized to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to identify respondent per Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization from complainant to use its mark may be evidence a respondent is not commonly known by the disputed domain name under Policy ¶ (c)(ii). See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). Here, the registrar provides the identity of the registrant of the disputed domain name as “Jason Evans”. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under a Policy ¶ 4(c)(ii) analysis.
Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use because Respondent attempts to imitate Complainant’s website for the purpose of acquiring personal and business information from Complainant’s current and potential customers. Specifically, the webpages associated with the disputed domain name displayed Complainant’s trademark, links that redirected users to Complainant’s “Help Centre” page and Complainant’s Terms of Service, and a fraudulent login page that mimics Complainant’s login page. Use of a domain name to pass off as complainant in furtherance of a phishing activity may not be considered a bona fide offering of goods and services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). 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.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods and services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent has no 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 attempted to phish for internet users personal and/or business information at the webpages associated with the disputed domain name. Use of a domain name to phish for Internet users personal and/or financial information may be evidence of bad faith per Policy ¶ 4(a)(iii). See United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.”). Accordingly, the Panel may finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Further, the disputed domain name is merely a misspelling of Complainant’s mark. This constitutes typosquatting. Previous panels have held that typosquatting is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form); see also The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”). Accordingly, the Panel finds bad faith registration and use on this ground also.
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s 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 <lndeed.cc> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 26, 2018
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