DECISION

 

Workday, Inc. v. David Clement

Claim Number: FA2312002075162

 

PARTIES

Complainant is Workday, Inc. ("Complainant"), represented by Caitlin R. Byczko of Barnes & Thornburg LLP, Indiana, USA. Respondent is David Clement ("Respondent"), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <workdaylytics.co>, (the "Domain Name") registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 13, 2023; Forum received payment on December 13, 2023.

 

On December 13, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <workdaylytics.co> 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 December 14, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2024 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@workdaylytics.co. Also on December 14, 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.

 

On January 5, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant's contentions can be summarised as follows:

 

The Complainant owns the trade mark WORKDAY registered, inter alia, in the USA for software first registered in 2007. It owns <workday.com>.

 

The addition of the generic term 'lytics' an abbreviation of the generic term analytics and the ccTLD .co do not distinguish the Domain Name (registered in 2021) from the Complainant's mark.

 

Respondent is not commonly known by or authorised by the Complainant to use the Domain Name.

 

The Domain Name has been used for pay per click links. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent has acted in opportunistic bad faith in confusing Internet users for commercial gain and using the Domain Name for pay per clicks.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant owns the trade mark WORKDAY registered, inter alia, in the USA for cloud based software services first registered in 2007. It owns <workday.com>.

 

The Domain Name registered in 2021 is currently being used for pay per click links including those that compete with the Complainant.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 and/or Confusingly Similar

The Domain Name in this Complaint combines the Complainant's WORKDAY mark (registered, inter alia, in the USA for software since 2007), 'lytics' an abbreviation of the generic term 'analytics' and the ccTLD .co.

 

The addition of a generic term, or by extrapolation a recognisable abbreviation of it, does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v Edna Sherman, FA 1652781 (Forum Jan 22, 2016)(Finding the addition of a generic term insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i).) Accordingly the addition of 'lytics' a recognisable abbreviation of 'analytics' does not prevent confusing similarity between the Complainant's mark and the Domain Name.

 

The ccTLD .co (designating Colombia, but often used informally to mean company) does not serve to distinguish a Domain Name from a Complainant's mark. See Thomson Reuters Global Resources v Matthew Krawitz, FA 1548336 (Forum Apr. 21, 2014) ("Respondent adds the country-code top-level domain ("ccTLD") ".co" to Complainant's mark in the disputed domain name, which also fails to distinguish the domain name from Complainant's mark").

 

Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of its mark. 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 Respondent has used the Domain Name for links offering competing services not connected with the Complainant. It does not make it clear that there is no commercial connection with the Complainant. McGuireWoods LLP v Mykhailo Loginov/Loginov Enterprises doo, FA1412001584837(Forum Jan 22, 2015)('The Panel finds Respondent's use of the disputed domain names to feature parked hyperlinks containing links in competition with the Complainant .. is not a bona fide offering of goods or services pursuant to 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to Policy 4(b)(iii).)

 

The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.

 

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

Use for competing pay per click links indicates bad faith being disruptive of the Complainant's business and diverting customers for commercial gain and also offering competing services indicates actual knowledge of the Complainant and its business. See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) ("Respondent's hosting of links to Complainant's competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy 4(b)(iii)"); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent's use of the <capitaloneonebank.com> domain name to display links to the complainant's competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy 4(b)(iv)). See also University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (where the Panel inferred Respondent's actual knowledge based on Respondent's use of the domain name to promote links related to the same field as where Complainant's mark is used.).

 

As such, the Panel holds 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) and (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <workdaylytics.co> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: January 5, 2024