Gallup, Inc. v. clifford jordan
Claim Number: FA2006001900288
Complainant is Gallup, Inc. (“Complainant”), represented by Ken Andersen of Gallup, Inc., Nebraska, USA. Respondent is clifford jordan (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gallupinc.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 known conflict in serving as Panelist in this proceeding.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 15, 2020; the Forum received payment on June 15, 2020.
On June 16, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <gallupinc.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 June 22, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 13, 2020 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@gallupinc.com. Also on June 22, 2020, 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 July 16, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in GALLUP. Complainant holds a national registration for that trademark. Complainant submits that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant uses the trademark GALLUP in connection with its opinion polling services;
2. Complainant owns, inter alia, United States Patent and Trademark Office (“USPTO”) Reg. No. 2,242,387, registered on May 4, 1999, for the trademark GALLUP;
3. The disputed domain name was registered on April 13, 2020 and has been used in the manner described later; and
4. There is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating the 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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant therefore has rights as it provides proof of its registration of the trademark GALLUP with the USPTO, a national trademark authority.
The Panel finds the domain name confusingly similar to the trademark. The domain name merely adds to the trademark the abbreviation, “inc” (thereby authentically reproducing Complainant’s name) and the gTLD, “.com”, both of which have no distinctive value (see, for example, Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Forum Dec. 31, 2007)).
The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).
In consequence of those proceedings, the Registrar informed the Forum that the underlying domain name registrant was a “Clifford Jordan”. There is no suggestion that Respondent might be commonly known by the disputed domain name, or that Respondent has any trademark rights of its own. Nothing in the record indicates that Respondent is licensed to use the trademark and Complainant has verified that Respondent has no such permission.
The domain name does not resolve to an active website. Complainant provides a screenshot of the resolving webpage which displays the message, “Notice! This domain has been redirected.” Such a notice does not give rise to rights or a legitimate interest (see, for example, Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (”Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”). Rather, Complainant asserts that:
“ … [t]he domain name … has been registered in order to commit fraud upon the general public. The Complainant became aware of an employment fraud activity using this domain after victims contacted Complainant’s “Gallup” Client Support on April 13th, 2020. Upon recovering information, including but not limited to, emails received by the fraud victims, Gallup’s Security team determined that the fraud activity began on or before April 3rd, 2020 when the fraud actor published a job opportunity on LinkedIn advertising for a Gallup, Inc. Software development position. This position was designed to look like it originated from the Complainant, the actual Gallup, Inc. organization and included links to actual Gallup, Inc. employees. Investigation by the security team determined that no Gallup, Inc. employee accounts were involved with the fraudulent job posting. The job posting is no longer available on LinkedIn. A report was made to LinkedIn’s abuse team to inform them of the fraud. At least 26 victims applied to this fraudulent job posting. The initial emails originated from Gmail accounts and directed fraud victims to be interviewed on either Google Hangouts or Telegraph. On April 13th, 2020 the cybercriminal registered the domain, GallupInc.com. All fraud victims were then given an offer letter informing them of a requirement to purchase certain equipment from the email address info@gallupinc.com. The fraud victim would send the fraud actor money and then never receive the equipment. The fraud victims are then asked for personal information by the fraud actor …”
Whilst there is no direct evidence of these claims and whilst some of the described scheme predates the creation of the domain name, there is no reason no question the authenticity of the claims and Respondent has chosen not to give any contradictory account of events or seek to establish its legitimate interest in the domain name. The Panel finds that Complainant has made a prima facie case and so the onus shifts to Respondent. In the absence of a Response, the Panel finds that Respondent has not discharged the onus and so finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
Paragraph 4(b)(iv) above is apt in this case. The Panel has already found the domain name to be confusingly similar to the trademark. The resolving website exists for commercial gain and was forged with the intention of furthering the nefarious scheme described already. Paragraph 4(b)(iv) is satisfied in all its elements and accordingly the Panel finds that the third and final element of the Policy has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <gallupinc.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: July 18, 2020
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