Indeed, Inc. v. Mark Conway
Claim Number: FA1905001843197
Complainant is Indeed, Inc. ("Complainant"), represented by Justin S. Haddock, Texas, USA. Respondent is Mark Conway ("Respondent"), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeedconsultant.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 15, 2019; the Forum received payment on May 15, 2019.
On May 15, 2019, GoDaddy.com, LLC confirmed by email to the Forum that the <indeedconsultant.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 May 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 4, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to firstname.lastname@example.org. Also on May 15, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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 June 6, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.
Complainant operates a popular website for employers and job seekers, with over 200 million unique monthly visitors from over 60 countries. Complainant has used the INDEED mark for this purpose since at least 2004, and asserts that the mark has become famous as a result of such use. Complainant claims rights in the mark both at common law and by virtue of various trademark registrations in United States and other jurisdictions.
Respondent registered the disputed domain name <indeedconsultant.com> in April 2019. The domain name redirects to the website for Respondent's company, Ancilla Corporation, at <www.ancillaco.com>. Ancilla is a management consulting and executive search firm, offering services that compete with those offered by Complainant. Complainant states that Respondent is not commonly known by the disputed domain name, and that Complainant has not licensed or otherwise permitted Respondent to use its INDEED mark.
On May 2, 2019, Complainant communicated with Respondent, asserting its trademark rights and asking him to transfer the disputed domain name. He responded by offering to transfer the domain name for $4,457.
Complainant contends on the above grounds that the disputed domain name <indeedconsultant.com> is confusingly similar to its INDEED mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <indeedconsultant.com> incorporates Complainant's registered INDEED trademark, adding the generic term "consultant" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (finding <indeedjobz.com> confusingly similar to INDEED); Campus Management Corp. v. Sudha d/b/a Nichetechies Consultants, FA 1346206 (Forum Oct. 25, 2010) (finding <talismaconsultants.com> confusingly similar to TALISMA); Research In Motion Ltd. v. Nigel Hull, D2009-1126 (WIPO Oct. 1, 2009) (finding <blackberryconsultant.com> confusingly similar to BLACKBERRY). Accordingly, the Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to redirect Internet users to the website for a competitor of Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Indeed, Inc. v. Ankit Bhardwaj / Recruiter, supra (finding lack of rights or interests where domain name incorporating INDEED mark was used for website offering competing services).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "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 [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's well-known mark; is using it to redirect traffic to the website for Respondent's company, a competitor of Complainant; and responded to an inquiry from Complainant by attempting to sell the domain name for a sum far exceeding out-of-pocket expenses. Such conduct demonstrates bad faith registration and use under the Policy. See, e.g., Winmark Corp. d/b/a Play It Again Sports v. In The Zone a/k/a Giant Sports Factory, FA 128652 (Forum Dec. 2, 2002) (finding bad faith where respondent used domain name to divert traffic to competitor's website, and responded to cease-and-desist letter with offer to sell domain name for $1,000). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <indeedconsultant.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 10, 2019
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