Indeed, Inc. v. Grace Phillips
Claim Number: FA1803001776339
Complainant is Indeed, Inc. (“Complainant”), represented by Rebecca R. McCurry of Pirkey Barber PLLC, Texas, USA. Respondent is Grace Phillips (“Respondent”), South Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeed.us.org>, registered with Hosting Concepts B.V. d/b/a Openprovider.
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.
Darryl C. Wilson, as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process has concluded/been terminated.
Complainant submitted a Complaint to the Forum electronically on March 16, 2018; the Forum received payment on March 16, 2018.
On March 18, 2018, Hosting Concepts B.V. d/b/a Openprovider confirmed by e-mail to the Forum that the <indeed.us.org> domain name is registered with Hosting Concepts B.V. d/b/a Openprovider and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Openprovider has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Openprovider registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On March 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 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@indeed.us.org. Also on March 27, 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 April 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 to the CDRP 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 CDRP Policy, CDRP 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, Indeed, Inc., provides the world’s largest job site. Complainant uses the INDEED mark to provide and market its services. Complainant registered the INDEED mark with the United States Patent Office (“USPTO”) (e.g. Reg. No. 3,141,242 registered on Sept. 12, 2006). Respondent’s <indeed.us.org> domain name is identical or confusingly similar to Complainant’s INDEED mark as it incorporates Complainant’s entire INDEED mark, merely adding the country code top level domain (“ccTLD”) “.us” and the generic top level domain (“gTLD”) “.org.”
Respondent has no rights or legitimate interests in the <indeed.us.org> domain name. Respondent is not commonly known by the INDEED mark, nor is Respondent sponsored or affiliated with Complainant. Complainant has not given Respondent permission to use the mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent’s resolving webpage is designed to impersonate Complainant in order to phish for personal information belonging to Complainant’s users.
Respondent registered or uses the <indeed.us.org> domain name in bad faith. Respondent has attempted to pass off as Complainant to attract, for commercial gain, Internet users to the Registrant’s website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Respondent has engaged in a pattern of bad faith registration. Respondent uses the disputed domain name to host a phishing scheme. Respondent had actual knowledge of Complainant’s mark when it registered the <indeed.us.org> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Indeed, Inc., of Austin, Texas, USA. Complainant is the owner of domestic and international registrations for the mark INDEED, which it has used continuously since at least as early as 2006, in connection with its establishment of global job websites and search engines related to the worldwide employment opportunities. Complainant has also owned and continuously used its related online portal since 2004 at <indeed.com>.
Respondent is Grace Phillips, of Charleston, South Carolina, USA. Respondent’s registrar’s address is listed as St. Ingbert, Germany. The Panel notes that Respondent registered the disputed domain name on or about February 23, 2018.
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 or is being used in bad faith.
The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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.”).
Complainant asserts rights in the INDEED mark based upon registration with the United States Patent Office (“USPTO”) (e.g. Reg. No. 3,141,242 registered on Sept. 12, 2006). Registration of a mark with the USPTO is sufficient to establish rights in that mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). The Panel here finds that Complainant has rights in the INDEED mark per Policy ¶4(a)(i).
Complainant argues that Respondent’s <indeed.us.org> domain name is identical or confusingly similar as it incorporates Complainant’s entire INDEED mark, adding merely the ccTLD “.us” and the gTLD “.org.” Addition of a ccTLD or a gTLD does not distinguish the domain from complainant’s mark in a Policy ¶ 4(a)(i) analysis. See ADESA, Inc. v. James Louis, FA 1736761 (Forum July 19, 2017) (“Panels routinely find that slight differences between domain names and registered marks, such as the addition of a “gTLD” or removal of a space, are irrelevant and do not distinguish the domain name from the mark incorporated therein… Accordingly, the Panel finds that Respondent’s <adesa.org> domain name is identical to Complainant’s ADESA mark.”); see also Am. Express Co. v. McWIlliam, FA 268423 (Forum July 6, 2004) (holding that the ccTLD “.us” does not negate confusing similarity under Policy ¶ 4(a)(i)). The Panel here finds that Respondent’s domain name is confusingly similar to Complainant’s INDEED mark pursuant to Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant here has set forth the requisite prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <indeed.us.org> domain name, as Respondent is not commonly known by the disputed domain name or licensed to use the INDEED mark. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). The WHOIS information of record identifies the registrant of the disputed domain name as “Grace Phillips.” The Panel here finds that under Policy ¶ 4(c)(ii) Respondent is not commonly known by the disputed domain name.
Additionally, Complainant argues that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Instead, Respondent allegedly uses the <indeed.us.org> domain name to perpetrate a phishing scheme. Using a disputed domain name to conduct a phishing scheme is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for Internet users personal information by offering a fake job posting on the resolving website). Complainant argues, with supporting evidence, that Respondent uses the <indeed.us.org> domain name to replicate Complainant’s own website for the purpose of acquiring personal and business information from Complainant’s customers. The Panel here finds that such use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
Complainant has proven this element.
Complainant contends that Respondent has also engaged in a pattern of bad faith registration as Respondent previously registered and used a domain name that infringed on Complainant’s mark. Registration and use of multiple domain names that infringe on complainant’s marks may evince a finding of a pattern of bad faith pursuant to Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”). Here, Complainant provides evidence of a previous UDRP decision found in favor of Complainant against Respondent. Specifically, Respondent’s registration of a previous disputed domain name containing Complainant’s mark for the purpose of a phishing scheme. The Panel here finds that Respondent registered the disputed domain in bad faith per Policy ¶ 4(b)(ii).
Complainant further argues that Respondent registered or uses the <indeed.us.org> in bad faith as Respondent attempts to pass off as Complainant for Respondent’s commercial gain. Use of a disputed domain name to pass off as a complainant for a respondent’s commercial gain evinces a finding of bad faith pursuant to Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant asserts Respondent uses the disputed domain name to direct Internet users to a website that directly copies Complainant’s website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant, for Respondent’s presumed commercial gain. The Panel here finds that Respondent registered and uses the <indeed.us.org> domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant also contends Respondent uses the disputed domain name to host a phishing scheme. Use of a disputed domain name in connection with a phishing scheme does not represent good faith per Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant contends Respondent hosts a website that is visually identical to that hosted by Complainant in an attempt to gain the personal login information of Internet users that mistake Respondent’s resolving website for Complainant’s own. The Panel finds Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <indeed.us.org> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: May 3, 2018
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