Indeed, Inc. v. James Nicholson
Claim Number: FA1912001873700
Complainant is Indeed, Inc. (“Complainant”), represented by Anne Krarup of Indeed, Inc., Texas, United States. Respondent is James Nicholson (“Respondent”), California, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lndeed.ink>(‘the Domain Name’), registered with NICENIC INTERNATIONAL GROUP CO., LIMITED..
The undersigned certifies that 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 4, 2019; the Forum received payment on December 4, 2019.
On December 10, 2019, NICENIC INTERNATIONAL GROUP CO., LIMITED confirmed by e-mail to the Forum that the <lndeed.ink> domain name is registered with NICENIC INTERNATIONAL GROUP CO., LIMITED and that Respondent is the current registrant of the name. NICENIC INTERNATIONAL GROUP CO., LIMITED has verified that Respondent is bound by the NICENIC INTERNATIONAL GROUP CO., LIMITED 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 December 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 6, 2020 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@lndeed.ink. Also on December 16, 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 January 9 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
Complainant runs the world’s largest job search Internet site and owns the INDEED mark registered, inter alia, in the USA for its services with first use recorded as 2004.
The Domain Name, registered in 2019, resolves to a website with no substantive content, but has been utilised to send fraudulent e-mails that appear to come from the Complainant to trick customers on clicking on a link leading to a fake log in page in an attempt to obtain users’ information.
The Domain Name registered in 2019 is an intentional misspelling of the Complainant’s mark. Internet users will perceive the first letter of the Domain Name, a lower case “L”, as an upper Case “I” and read the Domain Name as Indeed.ink and identical to the Complainant’s indeed mark except for the gTLD “.ink”.
Respondent is not commonly known by the Domain Name and has not been authorised by the Complainant to use the INDEED mark or the Domain Name. Use of the Domain Name for phishing cannot be a bona fide offering of goods or services or a legitimate fair non commercial use. The Respondent has no rights or legitimate interests in the Domain Name.
The fact that the Respondent is using the Domain Name to imitate the Complainant shows the Respondent is aware of the Complainant and its business, rights and services. The Domain Name has been used to confuse Internet users for commercial gain. Phishing is registration and use in bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant runs the world’s largest job search Internet site and owns the INDEED mark registered, inter alia, in the USA for its services with first use recorded as 2004.
The Domain Name, registered in 2019, resolves to a website with no substantive content but has been utilised to send fraudulent e mails that appear to come from the Complainant to trick customers on clicking on a link leading to a fake log in page in an attempt to obtain users’ information.
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”).
Identical or Confusingly Similar
The Domain Name consists of a misspelling of the Complainant’s mark INDEED using a lower case “L” to resemble an upper case “I” (which is registered in the USA for computer job search services and has been used since 2004) and the gTLD “.ink”. The Panel agrees that substitution of a character of the Domain Name such that it will be mistaken for the Complainant’s mark and adding a gTLD does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy.
The gTLD “.ink’ does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the INDEED mark in which the Complainant or a member of its group has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 Domain Name has been used for fraudulent e mails for phishing purposes which cannot amount to the bona fide offering of goods and services or a legitimate non commercial fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of the complainant’s mark in a fraudulent e mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy ¶ 4(b)(iii).)
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii).
Further phishing can be evidence of bad faith registration and use within the Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii). There is no need to consider any further allegations of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <Lndeed.ink> domain name be TRANSFERRED from Respondent to Complainant .
Dawn Osborne, Panelist
Dated: January 9, 2020
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