Indeed, Inc. v. Richard Turner / NA
Claim Number: FA1808001801213
Complainant is Indeed, Inc. (“Complainant”), represented by Anne Krarup of Indeed, Inc., Texas, USA. Respondent is Richard Turner / NA (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeedemployersupport.com>, registered with OwnRegistrar, Inc.
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.
Charles A. Kuechenmeister
Complainant submitted a Complaint to the Forum electronically on August 13, 2018; the Forum received payment on August 13, 2018.
On August 16, 2018, OwnRegistrar, Inc. confirmed by e-mail to the Forum that the <indeedemployersupport.com> domain name (the “Domain Name”) is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, Inc. 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 August 16, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of September 5, 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@indeedemployersupport.com. Also on August 16, 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 September 6, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 provides the world’s largest job site, with over 200 million unique visitors every month from over 60 countries. It has used its web site at <indeed.com> in connection with its business since 2004. It registered its INDEED mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,141,242) on September 12, 2006, and its logo with the USPTO (Reg No. 3,984,951) on June 28, 2011. Respondent’s Domain Name is confusingly similar to Complainant’s INDEED mark as it incorporates that mark in its entirety and merely adds the generic terms “employer” and “support,” and the generic top-level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the Domain Name. Complainant has not licensed or otherwise authorized Respondent to use its INDEED mark in any fashion, and Respondent is also not commonly known by the Domain Name as the WHOIS information of record lists “Richard Turner” as the registrant and “NA” as the registrant organization. Further, Respondent is not using the Domain Name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, it initially used it to pass off its web site as that of Complainant and phish for Internet users’ personal information. The Domain Name presently resolves to an inactive web site.
Respondent registered and uses the Domain Name in bad faith. Initially, Respondent used the confusingly similar Domain Name to create confusion with Complainant’s mark for Respondent’s commercial gain to attract Internet users to its web site. Respondent registered the Domain Name with full knowledge of Complainant’s rights in the INDEED mark. Finally, the web site resolving from the Domain Name initially resolved to a website that imitated Complainant’s own website, where Respondent phished for private, personal information about Complainant’s customers.
B. Respondent
Respondent did not submit a Response in this proceeding.
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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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 as follows with respect to the matters involved in this proceeding:
Complainant registered its INDEED mark with the USPTO (Reg. No. 3,141,242) on September 12, 2006, and its logo with the USPTO (Reg No. 3,984,951) on June 28, 2011. See, Complaint Exhibit C. Registration of a mark with a trademark authority, such as the USPTO, confers rights in a mark for the purposes of Policy ¶ 4(a)(i). 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.”).
Respondent’s Domain Name is confusingly similar to Complainant’s INDEED mark. It incorporates the mark in its entirety, altering it only by adding the generic terms “employer” and “support,” and the gTLD “.com.” These changes are insufficient to distinguish the Domain Name from Complainant’s mark. Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 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.).
Based upon the forgoing, the Panel finds that the Domain Name is confusingly similar to the INDEED mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(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 or commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) it is not commonly known by the Domain Name, (ii) it is not affiliated with or authorized by Complainant to use Complainant’s mark, and (iii) it is not using the Domain Name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or other fair use because using a domain name to impersonate a complainant and attempt to acquire personal and business information from a complainant’s customers cannot constitute a bona fide offering of goods and services. These allegations are supported by competent evidence.
According to the WHOIS report for the Domain Name attached to the Complaint as Exhibit A, the registrant is “Richard Turner.” This name bears no resemblance to the Domain Name. UDRP panels have consistently held that evidence of a registrant name that is materially different from the domain name at issue is competent evidence that the respondent is not commonly known by the domain name. Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name).
Complainant states that Respondent is not affiliated with it in any way, and that it has never authorized Respondent to use its INDEED mark in any domain name registration. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights and legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complaint Exhibit D is a screenshot of the login page for Respondent’s web site and the login page for Complainant’s web site, located at <indeed.com>. They are nearly identical, displaying Complainant’s registered logo, and a nearly identical color scheme, layout and substantive content. They both prompt the visitor to enter his or her email address and password and click on the login prompt. Respondent is clearly impersonating Complainant and engaging in a fraudulent phishing scheme to obtain personal and business information about the customer. Passing off in furtherance of a phishing scheme does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information).
Complaint Exhibit E is a screenshot of an August 10, 2018 message to Complainant from Whogohost, the host of Respondent’s web site, stating that, in response to communication from Complainant, it had suspended Respondent’s account. Complainant alleges that the Domain Name currently resolves to an inactive web site and based upon the Exhibit E communication the Panel takes this as true. Failure to make an active use of a confusingly similar domain name has been held to demonstrate a lack of bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), and of a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii). 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!”).
Complainant has made its prima facie case. On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product of service on your web site or location.
The evidence of Respondent’s use of the Domain Name discussed above in connection with the rights and legitimate interests analysis also supports a finding of bad faith use and registration. Respondent registered and is using the Domain Name to attract, for commercial gain, Internet users to its web site by creating confusion as to the source, sponsorship, affiliation or endorsement of the web site by Complainant, and this fits clearly within the circumstances articulated by Policy ¶ 4(b)(iv). Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”), Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 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.”).
Respondent’s fraudulent phishing scheme also qualifies on its own as evidence of bad faith registration and use. The Policy acknowledges that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldwcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of ¶ 4(Policy b) allows for consideration of additional factors in an analysis for bad faith, and passing oneself off as a complainant to phish for sensitive private information from others has often been held to evidence bad faith registration and use. 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).”).
Finally, it is evident from Complainant’s world-wide standing as a job site, and the close similarity between Complainant’s mark and web site on the one hand and Respondent’s Domain Name and web site on the other that Respondent had actual knowledge of Complainant’s INDEED mark on July 18, when it registered the Domain Name. See, Complaint Exhibit A for registration date. In light of the open ended, non-exclusive nature of Policy ¶ 4(b), actual knowledge of a complainant’s rights in a mark prior to registering an identical or confusingly similar domain name has often been held to be evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <indeedemployersupport.com> Domain Name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
Dated: September 10, 2018
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