Indeed, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2303002035781
Complainant is Indeed, Inc. (“Complainant”), represented by Justin Haddock of Indeed, Inc., Texas, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeedagencyrelations.com>, registered with GoDaddy.com, LLC.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to Forum electronically on March 14, 2023; Forum received payment on March 14, 2023.
On March 15, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <indeedagencyrelations.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 March 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 10, 2023 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@indeedagencyrelations.com. Also on March 20, 2023, 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.
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, Indeed, Inc., provides a job search and hiring website. Complainant has rights in the INDEED mark through its registration of the mark with multiple trademark agencies, including with the United States Patent and Trademark Office (“USPTO”) (e.g., USPTO Reg. No. 4,282,756 which was registered on January 29, 2013). Respondent’s <indeedagencyrelations.com> domain name is confusingly similar to the INDEED mark because it incorporates the entirety of the mark, merely appending the generic terms “agency” and “relations”, as well as the “.com” generic top-level domain (“gTLD”) to form.
Respondent does not have rights or legitimate interests in the <indeedagencyrelations.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, uses the disputed domain name to display pay-per-click advertisements to related and unrelated webpages. In addition, Respondent uses the disputed domain in the furtherance of a phishing scheme.
Respondent registered and uses the <indeedagencyrelations.com> domain name in bad faith. First, Respondent has displayed a pattern of bad faith registration and use of domain names. Also, Respondent uses the disputed domain name to display advertisements to competing and unrelated webpages. Further, Respondent uses the confusingly similar nature of the disputed domain name in the furtherance of an illegal phishing scheme. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the INDEED mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <indeedagencyrelations.com> domain name.
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 asserts rights in the INDEED mark based upon the registration of the mark with multiple trademark agencies, including the USPTO (e.g., Reg. No. 4,282,756 registered January 29, 2013). Registration of a mark with multiple jurisdictions is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See Emerson Electric Co. v. Cai Jian Lin / Shen Zhen Shi colorsun Zi Dong Hua You Xian Gong Si, FA 1798802 (Forum Aug. 31, 2018) (“Registering a mark with multiple trademark agencies around the world is sufficient to establish rights in a mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of registration of the INDEED mark with multiple trademark agencies. The Panel finds that Complainant has demonstrated rights in the INDEED mark per Policy ¶ 4(a)(i).
Complainant argues that the <indeedagencyrelations.com> domain name is confusingly similar to its INDEED mark. When a disputed domain name includes a mark in its entirety, additional terms and gTLDs are insufficient to defeat a finding of confusing similarity per Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The disputed domain name wholly incorporates the mark while merely adding the generic terms “agency” and “relations,” which are both associated with Complainant’s job-related services. It also appends the “.com” gTLD. The Panel finds that Respondent’s <indeedagencyrelations.com> domain name is confusingly similar to Complainant’s INDEED mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. 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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <indeedagencyrelations.com> domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the INDEED mark. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). A privacy service was used by Respondent, but was lifted by the registrar, GoDaddy.com, LLC, as a result of the commencement of this proceeding. The the WHOIS information of record identifies Respondent as “Carolina Rodrigues / Fundacion Comercio Electronico.” Additionally, lack of evidence in the record to indicate that a complainant authorized respondent to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). There is no evidence that Complainant authorized Respondent to incorporate the INDEED mark in the <indeedagencyrelations.com> domain name. The Panel finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <indeedagencyrelations.com> domain name under Policy ¶ 4(c)(ii).
Complainant contends that Respondent’s use of <indeedagencyrelations.com> also does not qualify as a bona fide offering or legitimate noncommercial or fair use. Complainant asserts that the disputed domain name resolves to a site containing pay-per-click hyperlinks and advertisements. Complainant provides a screenshot in which third-party links are prominent. Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Complainant also argues that Respondent uses the <indeedagencyrelations.com> domain name in furtherance of a phishing scheme, does not qualify as a bona fide offering of goods or services, nor a legitimate non-commercial or fair use. Phishing has been defined by past panels as a practice that defrauds Internet users into sharing valuable personal information through the use of emails, pop-ups, or other methods. See Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (defining “phishing” as “the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit card numbers, passwords, social security numbers and other personal information that may be used for fraudulent purposes”). Complainant attached evidence that suggests Respondent used the <indeedagencyrelations.com> domain name in a “bot attack”, attempting to pass off as a legitimate user of Complainant’s services and evade Complainant’s authentication protocols in order to post fraudulent jobs and access data from Complainant’s customers and job seekers. The Panel finds that Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent has a history of bad faith registration and adverse UDRP decisions. Previous adverse UDRP holdings against a Respondent may demonstrate a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“Complainant has provided evidence that Respondent has a history of UDRP and USDRP decisions decided against it. This establishes bad faith within the meaning of Policy ¶ 4(b)(ii).”). Complainant provides a citation of previous UDRP cases that resulted in an adverse finding against Respondent. This is evidence of bad faith under Policy ¶ 4(b)(ii).
Complainant further argues that Respondent registered and used the <indeedagencyrelations.com> domain name in bad faith, to attract Internet users with a false impression of association with Complainant. Past panels have found bad faith pursuant to Policy ¶ 4(b)(iv) when a respondent used a confusingly similar domain name to attract Internet users to a webpage that displays sponsored links. See Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links). The disputed domain name resolves to a webpage with pay-per-click sponsored links. Further, the disputed domain name fully incorporates Complainant’s INDEED mark which attracts users with a false sense of association with Complainant. This is evidence that Respondent registered and uses the <indeedagencyrelations.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant asserts that Respondent registered the <indeedagencyrelations.com> domain name with actual knowledge of Complainant’s rights in the INDEED mark. Under Policy ¶ 4(a)(iii), actual knowledge is generally sufficient in demonstrating bad faith, and may be established by a respondent’s particular use of a disputed domain name, including the incorporation of a well-known/registered mark into a domain name. See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration); see also 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”). Respondent incorporated Complainant’s entire well known INDEED mark in the <indeedagencyrelations.com> domain name. Based on this and the use made of the domain name, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the INDEED mark under Policy ¶ 4(a)(iii).
Complainant states Respondent’s use of the <indeedagencyrelations.com> domain name to engage in a phishing scheme is further evidence of bad faith. If a respondent uses the domain name and resolving website to illegally obtain personal and financial information, the Panel may find bad faith. See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”); see also Twitter, Inc. v. Alvaro Martins / Domaina Admin / Whois Privacy Corp., FA 1703001721606 (holding that use of the disputed domain name to offer instructions on how to hack a <twitter.com> account and offer hacking services is evidence of bad faith). Complainant attached screenshots showing that Respondent has used the disputed domain name to hack Complainant’s website and circumvent its authentication features. The Panel finds that Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
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 <indeedagencyrelations.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
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