SH, Inc. v. Raees Ahmad
Claim Number: FA1901001824374
Complainant is SH, Inc. (“Complainant”), represented by Justin Haddock of Indeed, Inc., Texas, USA. Respondent is Raees Ahmad (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <simplyhirednow.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of 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 January 9, 2019; the Forum received payment on January 9, 2019.
On January 10, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <simplyhirednow.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 January 10, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 30, 2019 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@simplyhirednow.com. Also on January 10, 2019, 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 1, 2019, 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 <simplyhirednow.com> domain name is confusingly similar to Complainant’s SIMPLY HIRED mark.
2. Respondent does not have any rights or legitimate interests in the <simplyhirednow.com> domain name.
3. Respondent registered and uses the <simplyhirednow.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SH, Inc., owns a job website and search engine that helps companies hire employees and job seekers find employment. Complainant holds registrations for the SIMPLY HIRED mark with the United States Patent and Trademark Office (“USTPO”) (e.g., Reg. No. 3,262,130 registered Jul. 10, 2007).
Respondent registered the <simplyhirednow.com> domain name on June 26, 2018, and uses it to redirect Internet users to Respondent’s website offering competing goods and services.
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 Panel finds that Complainant has rights in the SIMPLY HIRED mark under Policy ¶ 4(a)(i) based upon its registration of the mark with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides copies of its registrations with the USTPO (e.g., Reg. No. 3,262,130 registered Jul. 10, 2007). See Compl. Ex. C.
Respondent’s <simplyhirednow.com> domain name includes the SIMPLY HIRED mark, and simply adds a generic term and a gTLD. These changes to a mark do not distinguish a domain name under Policy ¶ 4(a)(i). See Starbucks Corporation d/b/a Starbucks Coffee Company v. Waseem A Ali / Micron Web Services, FA 1785616 (Forum June 8, 2018) (finding the <starbucksreal.com> domain name to be confusingly similar to the STARBUCKS mark, as “the addition of the generic term ‘real’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.”); 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. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). Accordingly, the Panel finds that Respondent’s <simplyhirednow.com> domain name is confusingly similar to Complainant’s SIMPLY HIRED 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 Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent lacks rights and legitimate interests in the <simplyhirednow.com> domain name and is not commonly known by the disputed domain name. Complainant states that Respondent is not authorized to use the Complainant’s SIMPLY HIRED mark. The WHOIS information of record identifies the registrant as “Raees Ahmad.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). 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)); see also 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.”).
Complainant argues that Respondent fails to use the <simplyhirednow.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant contends that Respondent uses the disputed domain name to offer and advertise goods and services identical to those offered by Complainant. Use of a domain name to advertise links to a complainant’s direct competitors may not be considered a bona fide offering or a legitimate use under Policy ¶¶ 4(c)(i) and (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides a screenshot of the disputed domain name’s resolving website showing that it is used to compete with Complainant. The Panel thus finds that Respondent fails to use the <simplyhirednow.com> domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <simplyhirednow.com> domain name in bad faith to advertise links to third party competitors. Complainant provides screenshots of the disputed domain name’s resolving website, which contains links and advertisements to third-party websites, some of which are Complainant’s competitors. The Panel therefore finds Respondent’s bad faith pursuant to Policy ¶ 4(b)(iii). See RetailMeNot, Inc. v. Above.com Domain Privacy, FA 1714474 (Forum Mar. 21, 2017) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Complainant further contends that Respondent attempts to commercially gain from
the website at <simplyhirednow.com> by creating a likelihood of
confusion with Complainant’s mark as to the source, sponsorship, affiliation,
or endorsement of the Respondent’s website in violation of Policy ¶ 4(b)(iv). The Panel agrees and finds bad faith under Policy
¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC
v. Anthony Williams, FA1760954 (Forum
Jan. 8, 2018) (“Respondent’s hosting of links to
Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org>
domain name pursuant to Policy ¶ 4(b)(iv)”).
Complainant argues that Respondent also registered and uses the <simplyhirednow.com> domain name in bad faith because Respondent responded to Complainant’s cease and desist letter by offering to sell the website for $1,000.00. Offering to sell a disputed domain name to a complainant for more than out-of-pocket costs may constitute bad faith under Policy ¶ 4(b)(i). See Hard Rock Café International (USA), Inc. v. Gameday Tickets, FA1202001428106 (Forum Mar. 20, 2012) (finding that the respondent’s offer to sell the disputed domain name to the complainant is evidence that the respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(i), regardless of that fact that Complainant made the first offer). The Panel finds that Respondent’s attempt to sell the disputed domain name for $1000 constitutes bad faith under Policy ¶ 4(b)(i).
Complainant also claims that Respondent had actual knowledge of Complainant’s marks because Complainant registered its SIMPLY HIRED mark over a decade before Respondent registered the disputed domain name, and because Respondent uses the mark to directly compete with Complainant. The Panel agrees and finds that Respondent’s actual knowledge of Complainant’s SIMPLY HIRED mark constitutes bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
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 <simplyhirednow.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 4, 2019
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