Indeed, Inc. v. Sagar Jain / IT
Claim Number: FA1907001853747
Complainant is Indeed, Inc. (“Complainant”), represented by Sheri Hunter of King & Spalding LLP, Texas, USA. Respondent is Sagar Jain / IT (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeedhubb.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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 24, 2019; the Forum received payment on July 24, 2019.
On July 25, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <indeedhubb.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 July 25, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 2019 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@indeedhubb.com. Also on July 25, 2019, 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 August 15, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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 in over 60 different countries. Complainant has rights in the INDEED trademark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,141,242 registered Sep. 12, 2006). Respondent’s <indeedhubb.com> domain name is confusingly similar to Complainant’s INDEED trademark. Respondent uses the INDEED trademark in its entirety and adds the word “hubb” in addition to the generic-top level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <indeedhubb.com> domain name as Respondent is not commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use.
Respondent registered and is using the <indeedhubb.com> domain name in bad faith as Respondent is using the disputed domain name to redirect internet users to a webpage that offers competing services. Respondent had actual and constructive knowledge of Complainant’s rights in the INDEED trademark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the following U.S. trademark registrations:
No. 3,141,242 INDEED (word), registered September 12, 2006 for goods and services in classes 35 and 42;
No. 4,282,756 INDEED (word), registered January 29, 2013 for goods in class 9; and
No. 3,984,951 INDEED (fig), registered June 28, 2011 for goods and services in classes 35 and 42.
The Complainant also claims to be the owner of, and thereby generally refers to, a number of other registered trademarks for INDEED, covering India, Canada, and European Union.
The disputed domain name <indeedhubb.com> was registered on June 4, 2019.
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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Complainant claims to have rights in the INDEED trademark through its registration with the USPTO, as well as in India, Canada, and the European Union. Registration of a trademark with the USPTO is sufficient to establish rights in a trademark per Policy ¶ 4(a)(i). See 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.”). Here, Complainant has provided the Panel with copies of its US registrations for the INDEED trademark (e.g., Reg. No. 3,141,242 registered Sep. 12, 2006). Therefore, the Panel finds that Complainant has adequately shown rights in the INDEED trademark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <indeedhubb.com> domain name is confusingly similar to Complainant’s INDEED trademark, as it includes the INDEED trademark and only adds the word “hub” in addition to the “.com” gTLD. Registration of a domain name that fully incorporates a trademark and adds a generic term and a gTLD does not distinguish the domain name from the trademark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a trademark under Policy ¶ 4(a)(i)). Therefore, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s INDEED trademark under Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent lacks rights or legitimate interest in the <indeedhubb.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the INDEED trademark or to register domain names using Complainant’s trademark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s trademark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Sagar Jain / IT” and there is no other evidence to suggest that Respondent was authorized to use the INDEED trademark or was commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant further argues that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use. The Panel notes that Complainant does not provide any specific argument to how Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii); however, Complainant’s evidence suggests that the disputed domain name’s resolving website features content and services very similar to Complainant’s business.
Use of a disputed domain name to feature competing goods or services and imitate a complainant’s website does not note amount to a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) and may be indicative of a Respondent’s lack of legitimate rights or interests in a domain name. See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”); see also ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶4(c)(i) and (iii).”). Complainant has provided the Panel with a screenshot of Respondent’s domain name’s resolving webpage, which contains facsimiles of Complainant’s INDEED trademark in connection to job search-related goods and services. Therefore, the Panel finds that Respondent failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent registered and is using the <indeedhubb.com> domain name in bad faith as Respondent is using the disputed domain name to redirect internet users to a webpage that offers competing services. Use of a disputed domain name to resolve to a webpage that offers competing services to complainant may be evidence of bad faith registration and use per Policy ¶¶ 4(b)(iii) and/or (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Here, Complainant has provided a screenshot of Respondent’s domain name’s resolving webpage that shows offerings of similar job descriptions and posts to Complainant’s business. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Complainant further argues that Respondent had actual and constructive knowledge of Complainant’s rights in the INDEED trademark prior to registration of the <indeedhubb.com> domain name. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, actual knowledge of Complainant’s rights in the trademark prior to registering the disputed domain name is adequate to find bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Use of a disputed domain name that includes a registered trademark may be sufficient to show Respondent had actual knowledge of Complainant’s rights in the trademark per Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Here, Complainant has provided the Panel with a screenshot of Respondent’s domain name’s resolving webpage that prominently displays Complainant’s INDEED trademark. The Panel also recall that Complainant has provided the Panel with copies of its USPTO registration for the INDEED trademark, and at least indicating that the Complainant also have registered trademark rights in India, the home country of the Respondent. In the absence of any reply/comments from the Respondent, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the INDEED trademark prior to registration of its disputed domain name which constitutes bad faith per 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 <indeedhubb.com> domain name be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: August 27, 2019
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