Adams Keegan, Inc. v. Unique Me
Claim Number: FA2210002014740
Complainant is Adams Keegan, Inc. (“Complainant”), represented by Nicole Berkowitz Riccio, Tennessee, USA. Respondent is Unique Me (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <efficenter.org>, registered with NameSilo, LLC.
PANEL
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 Forum electronically on October 5, 2022. Forum received payment on October 5, 2022.
On October 5, 2022, NameSilo, LLC confirmed by e-mail to Forum that the <efficenter.org> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 October 6, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 26, 2022 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@efficenter.org. Also on October 6, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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, Adams Keegan, Inc., is a leading national provider of human resources services, including solutions and software for payroll, recruiting, employee benefits and benefits administration. It is the owner of common law and registered rights to the EFFICENTER (and Design) trademark and the word mark EFFICENTER (collectively, “the EFFICENTER Trademarks). Complainant owns and operates the website at “www.efficenter.com”.
The <efficenter.org> domain name is identical to the EFFICENTER Trademarks. Respondent has no rights or legitimate interests in respect of the domain name, which has been registered and is being used in bad faith. Respondent is attempting to trade on the goodwill of Complainant, a trusted provider of human resources goods and services, in order fraudulently to induce customers to divulge sensitive information.
Respondent’s website even lists Complainant’s telephone number and includes employee pictures, in an apparent attempt to mislead customers. Respondent uses the domain name as a nefarious and fraudulent scheme to induce customers to reveal their login credentials to Respondent, believing Respondent to be Complainant.
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 shown that it has rights to the EFFICENTER (and Design) trademark through registration with the USPTO, Reg. No. 3,580,224, registered on February 24, 2009. There is no evidence before the Panel that Complainant has common law rights to the word mark EFFICENTER.
The Panel finds Respondent’s domain name to be virtually identical and confusingly similar to Complainant’s EFFICENTER (and Design) mark because it comprises the word EFFICENTER, which is the dominant feature of that mark, together with the inconsequential gTLD “.org”, which may be ignored.
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 <efficenter.org> domain name was registered on August 16, 2022, many years after Complainant registered its EFFICENTER (and Design) mark. It resolves to a website purporting to be Complainant’s website, prominently and frequently displaying the name of Complainant; having a login portal mimicking the login portal on Complainant’s “www.efficenter.com” website; and showing Complainant’s telephone number and pictures of Complainant’s employees.
These circumstances, together with 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 <efficenter.org> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
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 the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, 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 Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s EFFICENTER (and Design) mark when Respondent registered the <efficenter.org> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Although there appears in fine print at the foot of the last page of Respondent’s website the disclaimer: “This website is not associated with the Efficenter”, the Panel considers this highly unlikely to dispel the confusion as to the source of the website that Respondent has clearly sought to create by its registration and use of the domain name.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <efficenter.org> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: November 4, 2022.
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