Indeed, Inc. v. James Nicholson
Claim Number: FA2001001878919
Complainant is Indeed, Inc. (“Complainant”), represented by Justin Haddock of Indeed, Inc., Texas, USA. Respondent is James Nicholson (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lndeed.art>, registered with NICENIC INTERNATIONAL GROUP CO., LIMITED.
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 15, 2020. The Forum received payment that day.
On February 11, 2020, NICENIC INTERNATIONAL GROUP CO., LIMITED confirmed by e-mail to the Forum that the <lndeed.art> 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 February 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 3, 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.art. Also on February 12, 2020, 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 March 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 helps prospective employees find jobs and helps companies find employees.
Respondent’s <lndeed.art> domain name is confusingly similar to Complainant’s INDEED registered mark.
Respondent lacks rights or legitimate interests in the <lndeed.art> domain name. Respondent is not commonly known by the domain name and is not licensed or authorized to use Complainant’s mark in any fashion. Respondent uses the domain name to send fraudulent emails to Complainant’s customers to trick them into revealing personal financial information. This is not use in connection with a bona fide offering of goods or services nor legitimate noncommercial or fair use.
Respondent registered and uses the <lndeed.art> domain name in bad faith by impersonating Complainant in emails in order fraudulently to acquire personal financial information from Complainant’s customers. Respondent must have had actual knowledge of Complainant’s rights in the INDEED mark prior to registration of the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has rights in the INDEED mark through several registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,141,242 registered on Sep. 12, 2006).
Respondent’s <lndeed.art> domain name was registered on November 20, 2019. It is confusingly similar to Complainant’s INDEED mark, using the lower case letter “L” in the domain name instead of the capital letter “I” in the mark, resulting in visual similarity, and adding the inconsequential “.art” generic top-level domain (“gTLD”), which may be ignored. See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”)
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The WHOIS information for the domain name lists the registrant as “James Nicholson,” and there is no evidence to suggest that Respondent was authorized to use the INDEED mark. Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain name. See 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”).
Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent’s website or location or of a product or service on its website or location.
The domain name <lndeed.art> is virtually identical to the common dictionary word “indeed”, differing only in the use of the lower-case letter “l” instead of the letter “i”. The mere registration of a common dictionary word domain name does not give rise to any inference of bad faith.
However, Complainant has provided evidence of Respondent’s use of the domain name to impersonate Complainant in seeking, by email, to procure financial information from Complainant’s customers. This leads inevitably to the conclusion that Respondent was well aware of Complainant and its INDEED registered trademark when registering the domain name in November, 2019, more than 10 years after Complainant registered that mark and that Respondent did so fraudulently for financial gain. Hence the Panel finds that Respondent registered and is using the domain name in bad faith.
Complainant has established this element.
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.art> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: March 9, 2020
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