DECISION

 

Workday, Inc. v. sunmoon Realtors

Claim Number: FA2402002083930

 

PARTIES

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

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <interworkdays.com> ("Domain Name"), registered with Network Solutions, 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.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 15, 2024; Forum received payment on February 15, 2024.

 

On February 15, 2024, Network Solutions, LLC confirmed by e-mail to Forum that the <interworkdays.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 February 16, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 7, 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@interworkdays.com. Also on February 16, 2024, 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 March 8, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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

Complainant, Workday, Inc., is a leading provider of enterprise cloud applications for human resources and finance.  Complainant has rights in the WORKDAY mark through its registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,280,638 registered August 14, 2007).  Respondent's <interworkdays.com> domain name is confusingly similar to Complainant's mark because it incorporates the WORKDAY mark in its entirety and adds the generic term "inter", the letter "s" and the ".com" generic top-level domain ("gTLD").

 

Respondent has no rights or legitimate interests in the <interworkdays.com> domain name. Respondent is not commonly known by the Domain Name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use its WORKDAY mark. Respondent also does not use the Domain Name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use, but instead passively holds the Domain Name or operates a deceptive website from the Domain Name.

 

Respondent registered and uses the <interworkdays.com> domain name in bad faith. Respondent operates a deceptive site from the Domain Name.  Respondent had actual knowledge of Complainant's rights in the WORKDAY mark prior to registration of the <interworkdays.com> domain name due to the reputation of the Complainant and the use of the Domain Name for a deceptive site.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant having failed to establish bad faith registration and use of the domain name <interworkdays.com> has not established all required elements of its claim, and thus its complaint must be denied.

 

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

Complainant has rights in the WORKDAY mark based on registration with the USPTO (e.g Reg. No. 3,280,638 registered August 14, 2007). Registration of a mark with the USPTO sufficiently confers a complainant's rights in a mark for the purposes of Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office ("USPTO").").

 

The Panel finds that the <interworkdays.com> domain name is confusingly similar to Complainant's WORKDAY mark as it wholly incorporates the WORKDAY mark (in plural form) and adds the generic term "inter", along with the ".com" gTLD. Under Policy ¶ 4(a)(i), adding a generic word along with a gTLD is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant's entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.").

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

In light of the Panel's dispositive finding on the issue of registration and use in bad faith, the Panel declines to address the question of rights or legitimate interests.

 

Registration and Use in Bad Faith

The Panel finds that Complainant has failed to meet its burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii).  See Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) ("Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith."); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum Jul. 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).

 

The Domain Name consists of three generic words/prefixes (being "inter", "work" and "days").  Each of these words/prefixes has a descriptive meaning and the Panel is not satisfied that WORKDAY mark is so distinctive, well-known and ubiquitous that the Panel can conclude, for that reason alone, that the Respondent's registration of a domain name containing the plural form of the word "workday" was motivated by awareness of Complainant (which would generally amount to bad faith registration), as opposed to acquisition of the Domain Name for its inherent meaning being three descriptive words/prefixes.  Nor does Complainant provide any evidence relating to the identity of Respondent, such as past dealings with Complainant, or connection with Complainant's businesses, such that it would be reasonable to infer Respondent was aware of Complainant at the time of registration.  Nor is there any evidence before the Panel of the Respondent engaging in a pattern of bad faith behavior or any other conduct that would suggest registration and use of the Domain Name in bad faith.

 

Therefore, in order to determine if Respondent's registration of the Domain Name was motivated by awareness of Complainant or the inherent qualities of the words comprising the Domain Name, it is necessary to consider evidence of Respondent's use of the Domain Name.  Complainant asserts without evidence that Respondent is passively holding the Domain Name. It also makes the (seemingly contradictory) submission that the Respondent is operating a deceptive website at the Domain Name. Complainant provides no evidence of the website operated by Respondent from the Domain Name, only a screenshot of a browser page marking the website at the Domain Name as potentially fraudulent.

 

The fact that a particular Internet browser may identify a website as fraudulent is not a definitive finding about the content of a website (indeed Complaint at paragraph 6[a][vii] appears to suggest that the identification only comes up from "certain browsers").  Website filtering, similar to spam filtering, is conducted automatically and is sometimes incorrect in that it marks legitimate sites or otherwise inactive sites as being deceptive. It would have been relatively simple for Complainant to bypass the browser marking and provide direct evidence of the actual content of the Respondent's Website in its Complaint. Its failure to do (and submission that the Panel should reach a conclusion based on a single instance of automated filtering by a browser) tells against the Complainant. In circumstances where Complainant could have provided evidence of the actual use of the Domain Name, and has chosen not to, the Panel cannot reach a conclusion about the use of the Domain Name (and through it make a finding that Respondent's registration and use of the Domain Name was in bad faith) on the evidence before it.

 

The Uniform Domain Name Dispute Resolution Policy, is designed to deal with clear cases of cybersquatting, see IAFT International LLC v. MANAGING DIRECTOR / EUTOPIAN HOLDINGS, FA 1577032 (Forum Oct. 9, 2014) ("The objectives of the Policy are limited -- designed to obviate the need for time-consuming and costly litigation in relatively clear cases of cyber-squatting -- and not intended to thwart every sort of questionable business practice imaginable. ").  In the present case Respondent has registered a domain name consisting of the words "inter work days" and Complainant has failed to provide any useful evidence of Respondent's intention behind the registration of the Domain Name or use of the Domain Name.  In the absence of any evidence that Respondent has engaged in other bad faith conduct, the mere fact that a party has registered a domain name consisting of three descriptive terms and the Domain Name (apparently) resolves a website has been marked by a single browser as potentially being deceptive is not sufficient to establish bad faith under the Policy. 

 

As reasoned above, the Panel finds that Complainant has failed to prove that the Domain Name was registered and used in bad faith.

 

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <interworkdays.com> domain name REMAIN WITH Respondent.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: March 10, 2024