Adecco Group AG v. Priyanka Saini
Claim Number: FA1710001754422
Complainant is Adecco Group AG (“Complainant”), represented by Rebecca R. McCurry of Pirkey Barber PLLC, Texas, USA. Respondent is Priyanka Saini (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <theadecco.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her 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 October 18, 2017; the Forum received payment on October 18, 2017.
On October 19, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <theadecco.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 October 24, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 2017 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@theadecco.com. Also on October 24, 2017, 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 formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent did send some e-mails to the Forum, see below.
On November 17, 2017, 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
Complaint states that it a is a leader in the employment industry, helping companies of all sizes hire employees and helping job seekers find employment opportunities. In particular, Complainant provides employment agency, recruiting, and temporary staffing services. Complainant uses the ADECCO mark to provide and market its products and services. Complainant has rights in the mark based upon registration in the United States in 1998. The mark is registered elsewhere around the world and it is famous.
According to Complainant, the disputed domain name is confusingly similar to its mark as it contains the mark in its entirety, merely adding the generic term “the” and the generic top level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted Respondent permission or license to use the ADECCO mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, the disputed domain name resolved to a website offering staffing, recruiting, and employment agency services and prominently featuring the ADECCO mark, as well as information that would lead one to believe the site was operated by Complainant. For example, the resolving website stated that it was “The Adecco Group,” had “32,000 FTE employees, and around 5,100 branches in over 60 countries” and was a “Fortune Global 500 company.” After Complainant sent a cease and desist letter, Respondent temporarily took down the website, and then reposted it with a different logo stylization, but the website still prominently features the ADECCO mark, as well as information that would lead one to believe the site was operated by Complainant. Further, Respondent uses the web site at the disputed domain name to impersonate Complainant in an attempt to fraud job seekers. Specifically, Respondent contacts job seekers, claims that the job seeker is a final candidate for a specific job, and tells the job seeker that they must pay money for certification courses that are “required” in order to obtain the job. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and used the disputed domain name in bad faith. Respondent creates a likelihood of confusion with Complainant’s mark and attempts to commercially gain from such confusion. Additionally, Respondent’s use of the disputed domain name is disrupting Complainant’s business by offering competing services. Respondent has failed to respond to cease and desist letters from Complainant. Finally, Respondent had actual knowledge of Complainant’s ADECCO mark and business prior to registration and during subsequent use. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, in its e-mails to the Forum Respondent states, in pertinent part:
We don’t want to file anything as the domain name we purchased is from Godaddy we paid for it we already put a lot of money to make the website and all tie ups. Now it’s similar to the name of “The adecco group”
That’s not our fault and no one can blame us for that, they needs to talk with the domain name providers not with the end users.
No formal response is required as we did nothing.
If they want us to transfer the domain name then all the expense occurred by us till date needs to be paid off and once it’s done we will transfer the domain name
Complainant owns the mark ADDECO, with rights dating back to 1998 and uses it to market employment services.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used to resolve to a website that purports to be Complainant’s website and that is used for fraudulent purposes. Respondent had actual knowledge of Complainant’s marks.
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 formal 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 ADECCO mark as the domain name contains the mark in its entirety, and adds the generic term “the” along with the gTLD “.com.” Slight differences between domain names and registered marks, such as the addition generic terms, do not distinguish the domain name from the mark incorporated therein. Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (ForumJan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis.). Similarly, the addition of a gTLD to a mark is irrelevant in determining whether the disputed domain name is confusingly similar. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Accordingly, the Panel finds that the disputed domain name <theadecco.com> is confusingly similar to Complainant’s ADECCO mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the ADECCO mark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the 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)). The Panel notes that the WHOIS information of record identifies Respondent as “Priyanka Saini.” Additionally, lack of evidence in the record to indicate the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in the disputed 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). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Further, Respondent has set up the resolving website to mimic Complainant’s legitimate website in an attempt to pass off as Complainant, presumably in support of the fraudulent scheme mentioned below. This is not a bona fide offering of goods or services as Respondent is using the infringing Domain Name in order to trade upon Complainant’s global reputation. See Bloomberg L.P v. Bloomberg Realty (India) Private Limited, FA 1204001439263 (Forum May 30, 2012) (“Use of a domain name which intentionally trade on the fame of another cannot constitute a bona fide offering of goods and services”). Accordingly, the Panel finds that Respondent registered the domain name for the purpose of trading off of Complainant’s reputation, failing to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).
Respondent is using the disputed domain name to impersonate Complainant in an attempt to fraud job seekers. Namely, Respondent contacts job seekers, claims that the job seeker is a final candidate for a specific job, and tells the job seeker that they must pay money for certification courses that are “required” in order to obtain the job. Thus Respondent uses the disputed domain name for an illegal purpose. Illegal use of a disputed domain name does not constitute a bona fide offering of goods or services. See Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Therefore, Panel finds that Respondent failed to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).
The Panel notes that Respondent’s argument that it had rights or legitimate interests in the disputed domain name because it acquired that domain name are not valid under the Policy, for the reasons given above. Consequently, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent 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 names.
Indeed, as already noted, the disputed domain name resolves to a website offering staffing, recruiting, and employment agency services and prominently featuring the ADECCO mark, as well as information that would lead one to believe the site was operated by Complainant. Using a confusingly similar domain name to mislead users can evince bad faith registration and use per Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶ 4(b)(iv).
Further, Respondent’s impersonation of Complainant for fraudulent purposes disrupts and competes with Complainant’s business. Past panels have determined that the use of a domain by a respondent to impersonate a complainant constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). 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)); see also 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); see also National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum September 22, 2014) (“We are persuaded by the evidence that Respondent’s use of the <nov-inc.com> domain name to commit a commercial fraud while purporting to act in the name of the Complainant, all as alleged in the Complaint, demonstrates bad faith in the registration and use of the domain name”). For this reason, the Panel finds that Respondent registered and is using the domain in bad faith pursuant to Policy ¶ 4(b)(iii).
Further, even if Respondent were offering actual recruiting and employment services through disputed domain name, such use would still support a finding of bad faith use and registration, as these are the same services offered by Complainant under its famous ADECCO mark, which are at best Complainant’s own services, and may be counterfeit services. Disrupting complainant’s business using a confusingly similar domain name to mislead consumers and then offering complainant’s good or services is evidence of bad faith per Policy ¶ 4(b)(iii). See Fossil, Inc. v. NAS, FA 92525 (Forum Feb. 23, 2000) (Respondent acted in bad faith by registering the <fossilwatch.com> domain name and using it to sell various watch brands where the respondent was not authorized to sell the complainant’s goods). Therefore, the Panel finds Respondent has registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark, as shown by its use of the mark and information about Complainant on the resolving web site. Actual knowledge may be proven through a totality of circumstances surrounding the registration of the disputed domain name. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.) Thus the Panel finds that Respondent had actual knowledge of Complainant’s rights in the ADECCO mark when it registered and subsequently used disputed domain name, thereby supporting a finding of 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 <theadecco.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 19, 2017
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