DECISION

 

Allyn International Services, Inc. v. Profile / Chee Nnnam

Claim Number: FA2409002117939

PARTIES

Complainant is Allyn International Services, Inc. ("Complainant"), represented by Allison R. Imber, Esq. of Allen, Dyer, Doppelt & Gilchrist, P.A., Florida, USA. Respondent is Profile / Chee Nnnam ("Respondent"), USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <allynintlcareers.com>, 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.

 

Debrett G. Lyons as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 27, 2024; Forum received payment on September 27, 2024.

 

On September 27, 2024, NameSilo, LLC confirmed by e-mail to Forum that the <allynintlcareers.com> 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 September 30, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 21, 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@allynintlcareers.com. Also on September 30, 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 October 22, 2024, pursuant to complainants' request to have the dispute decided by a single-member Panel, Forum appointed Debrett G. Lyons 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 asserts trademark rights in ALLYN and ALLYN INTERNATIONAL. Complainant submits that the disputed domain name is confusingly similar to its trademarks.

 

Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Further, Complainant alleges that Respondent registered and used the disputed domain name in bad faith.

 

In particular, Complainant asserts that Respondent has used the domain name as part of an email address and has sent emails with a fraudulent purpose for commercial gain.

 

B.       Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The factual findings pertinent to the decision in this case are that:

1.       Complainant has registered trademarks with the United States Patent & Trademark Office ("USPTO") which contain or comprise of the word, ALLYN;

2.       the disputed domain name was registered on September 3, 2024, by Respondent using a privacy service to shield its identity;

3.       until Respondent received a pre-Complaint letter of demand from Complainant, the disputed domain name resolved to a webpage with the following links to third party providers of goods and services: Medical Colleges; Jobsite Security Cameras; and School Programs;

4.       it then came to Complainant's notice that the domain name was being used to send emails which present themselves as having originated from Complainant to third parties, offering the recipients possible employment.

 

DISCUSSION

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.  

 

Identical and/or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.

 

Paragraph 4(a)(i) does not distinguish between registered and unregistered trademark rights (see, for example, Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017).  A trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)).  For the purposes of this analysis the Panel notes from the evidence accompanying the Complaint, USPTO Reg. No. 6,161,205, registered on September 29, 2020, for ALLYN INTERNATIONAL, in the name of Complainant. The Panel is satisfied that Complainant has trademark rights since the USPTO is a national authority.

 

For the purposes of comparison of the disputed domain name with the trademark, the gTLD, ".com" can be disregarded (see, for example, Am. Int'l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Forum Dec. 31, 2007)). The domain name uses the known abbreviation of "international" - "intl" - and the additional word, "careers", is descriptive and of no source distinguishing value. The Panel finds that the domain name is confusingly similar to the trademark (see, for example, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.").

 

The Panel therefore finds that the requirements of paragraph 4(a)(i) of the Policy are satisfied.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:

 

(i)                      before any notice to you of the dispute, your use 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)                      you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

 

(iii)                      you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).

 

The name of the domain name owner does not carry any suggestion that Respondent might be commonly known by the domain name. There is no evidence that Respondent has any trademark rights of its own. The use is for a fraudulent purpose since the domain name is being used to impersonate an employee of Complainant's HR department to most likely effect a phishing scheme, presenting a false impression to job seekers that Complainant is looking to engage them and soliciting personal information. Such use is clearly not a bona fide offering of goods or services or legitimate non-commercial or fair use under the Policy  for (see, for example, Am. Int'l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant's mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name; Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) ("The Panel finds that Respondent's attempt to "phish" for users' personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)."); Home Depot Product Authority, LLC v. Domain Owner / Knowbe4, FA 1990823 (Forum May 25, 2022) ("Using a domain name to gain commercially through a fraudulent email scam is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use as contemplated by Policy ¶ 4(c)(iii).").

 

Further, using a domain name to promote unrelated third-party goods and services does not create rights and legitimate interests in a domain name, nor is it a bona fide offering of goods or services (see, for example, Holland & Hart LLP v. Michael Casimiro, FA 2408002111511 (Forum Sept. 11, 2024) ("Use of a domain name to redirect users to unrelated third-party sites (whether or not they compete with Complainant) is not a bona fide offering of goods or services or a legitimate non-commercial or fair use.")).

 

A prima facie case has been made and so the onus shifts to Respondent to rebut that case by demonstrating those rights or interests.  Absent a Response the onus is not met and so the Panel finds that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.  

 

Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established. 

 

The four specified circumstances are:

 

(i)                      circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or

 

(ii)                      the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

 

(iii)                      the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

 

(iv)                      by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent's website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on the site or location.

 

The Panel finds that Respondent's conduct falls under paragraph 4(b)(iv). The Panel has found that the domain name to be confusingly similar to the trademark. The uses of the domain name are almost certainly for commercial gain, in one instance through click-through-fees, and in the other through some fraud on the job candidates. In terms of the Policy, the Panel finds that Respondent has used the disputed domain name to attract, for commercial gain, internet users to its website or online location by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of that website or location (see, for example, Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) ("Respondent uses the <abbuie.com> domain name to impersonate Complainant's CEO. Such use is undeniably disruptive to Complainant's business and demonstrates bad faith pursuant to … Policy ¶ 4(b)(iv)")).

 

The Panel finds that Complainant has satisfied the third and final element of the Policy.

 

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 <allynintlcareers.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Debrett G Lyons, Panelist

Dated: October 25, 2024