Ceridian HCM, Inc. v. Larson Amy
Claim Number: FA2007001906469
Complainant is Ceridian HCM, Inc. (“Complainant”), represented by Ashley M. Bennett Ewald of LATHROP GPM, LLP., Minnesota, United States. Respondent is Larson Amy (“Respondent”), Texas, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ceri-dian.com>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 29, 2020; the Forum received payment on July 29, 2020.
On July 29, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <ceri-dian.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 July 31, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 20, 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@ceri-dian.com. Also on July 31, 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. Respondent did however send an email to the Forum, see below.
On August 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
Preliminary Issue: Identity Theft
Respondent contends that it has been the victim of identity theft, see below. However, the Forum did not receive any further response from the named Respondent and proceeded with the Panel appointment. The Panel has taken the following rules and precedent into account in making a determination on not redacting Respondent’s identity.
According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.).
However, according to Forum Supplemental Rule 15(b), “All requests pursuant to Policy paragraph 4(j) and Rule 16(b) to have a portion of the decision redacted, must be made in the Complaint, the Response, or an Additional Submission that is submitted before the Panel’s decision is published.” (emphasis added). Rule 1 defines “respondent” as “the holder of a domain-name registration against which a complaint is initiated;” and Forum Supplemental Rule 1(d) further defines “the holder of a domain-name registration” as “the single person or entity listed in the WHOIS registration information at the time of commencement.” The Panel notes precedent which holds the registrar-confirmed registrant of a disputed domain (per the WHOIS at commencement of the proceeding) the proper respondent, notwithstanding the possibility that said respondent’s identity was stolen. See, e.g., Banco Bradesco S/A v. Gisele Moura Leite, D2014-0414 (WIPO Apr. 30, 2014).
In the instant case, there has been no request in the Complaint to redact any portion of the decision, nor has there been a Response or an Additional Submission. Consequently, the Panel finds that it is not warranted to redact Respondent’s name and location from the Panel’s decision,
A. Complainant
Complainant states that it is a global human capital management software company, providing computer software and other services that help its customers manage employee-related projects in the areas of human resources, payroll, benefits, workforce management, and talent management. Complainant continuously wins awards for its software, as well as for its excellent workplace environment, including Glassdoor’s 2019 Best Places to Work. Complainant offers its products and services to a variety of industries, including retail and hospitality, manufacturing, healthcare, financial services, sports entertainment, and others. Complainant has headquarters in the United States, Europe, Canada, Australia, and Mauritius, as well as many other locations throughout the United States and Canada. Complainant asserts rights in the CERIDIAN mark through its registration of the mark in the United States in 1994. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is confusingly similar to its mark, as the domain name incorporates the mark in its entirety, merely adding a hyphen and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent’s use of the CERIDIAN mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to pass off as Complainant in furtherance of a fraudulent phishing scheme. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the domain name to pass off as Complainant and create a likelihood of confusion. Respondent had knowledge of Complainant’s rights in the mark at the time of registration. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. It its email to the Forum, Respondent states, in pertinent part: “My firm does not have any records regarding any client registering this domain name, and I have attempted to contact the number listed as the contact number for the domain registration to ensure this is not a client of my firm. As far as I can determine, my email address should not have been listed as a contact address for this domain name. I am happy to respond to the complaint if you believe a response is necessary. That said, my response would simply note that neither I nor my firm registered the domain name at issue, and we do not represent any client that has registered the domain name at issue.”
Complainant owns the mark CERIDIAN and uses it to market software related to business management services.
Complainant’s rights in its mark date back to 1994.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used in a fraudulent email phishing scheme. The fraudulent emails display Complainant’s mark and the URL of its legitimate website.
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 disputed domain name incorporates Complainant’s CERIDIAN mark in its entirety and merely adds a hyphen to the middle of the mark along with the “.com” gTLD. The addition of a hyphen and a gTLD is not sufficient to distinguish a mark from a domain name under the Policy. See ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug, 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its CERIDIAN mark. Respondent is not commonly known by the disputed domain name: absent a response, WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information for the disputed domain name shows that the registrant’s name is “Larson Amy”. Therefore, the Panel may finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name in a fraudulent email phishing scheme. Specifically, Complainant provides evidence showing that Respondent used the disputed domain name in emails to Complainant’s customer’s in order to attempt to obtain funds from those Complainant’s customers by impersonating Complainant’s employees. The signature block of the fraudulent emails displayed Complainant’s mark and the URL of its legitimate website. Use of a disputed domain name in furtherance of a fraudulent scheme is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name in fraudulent emails. This is indicative of bad faith registration and use under the Policy. See Microsoft Corporation v. Terrence Green, FA 1661030 (Forum, Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); The Hackett Group, Inc. v. Brian Herns/The Hackett Group, FA 1597465 (Forum, Feb. 6, 2015) (finding that the use of emails associated with the domain name to send fraudulent emails contains the requisite competitive nature under Policy ¶ 4(b)(iii) and this is evidence of bad faith disruption); National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum, September 22, 2014) (“We are persuaded by the evidence that Respondent’s use of the <nov-inc.com> domain name to commit a commercial fraud while purporting to act in the name of the Complainant, all as alleged in the Complaint, demonstrates bad faith in the registration and use of the domain name”). For this reason, the Panel finds that Respondent registered and is using the domain in bad faith pursuant to Policy ¶ 4(b)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the fraudulent emails display Complainant’s mark and the URL of its legitimate website. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also 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.”); see also 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <ceri-dian.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 25, 2020
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