Indeed, Inc. v. Alvaro Lemos
Claim Number: FA1806001793156
Complainant is Indeed, Inc. (“Complainant”), represented by Rebecca R. McCurry of Pirkey Barber PLLC, Texas, USA. Respondent is Alvaro Lemos (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indeed.one>, registered with NameSilo, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 21, 2018; the Forum received payment on June 21, 2018.
On June 22, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <indeed.one> 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 June 26, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 16, 2018 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 firstname.lastname@example.org. Also on June 26, 2018, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On July 17, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Operating under the INDEED mark, Complainant provides the world’s largest online job site, with over two-hundred (200) million visitors every month from over sixty different countries.
Complainant holds a registration for the INDEED service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 3,141,242 registered September 12, 2006).
Respondent registered the domain name <indeed.one> on May 30, 2018.
The domain name is confusingly similar to Complainant’s INDEED mark.
Respondent has not been commonly known by the domain name.
Respondent is not authorized to use the INDEED mark in any way.
Respondent fails to use the domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use.
Instead, Respondent uses the domain name to achieve financial gain by passing itself off as Complainant in order to acquire and exploit, through a phishing scheme, personal and business information, including their email addresses and passwords, from Complainant’s current and potential Internet customers.
Respondent lacks rights to and legitimate interests in the domain name.
Respondent had actual knowledge of Complainant’s rights in the INDEED mark prior to Respondent’s registration of the domain name.
Respondent registered and uses the domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the INDEED service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017):
Complainant has rights in its … 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”).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Canada). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <indeed.one> domain name is substantively identical and confusingly similar to Complainant’s INDEED service mark. The domain name contains the mark in its entirety, with only the addition of the generic Top Level Domain (“gTLD”) “.one.” This alteration of the mark, made in forming the domain name, does not save it from the realm of confusing similarity under the standards of the Policy. See, generally, MTD Products Inc v. Mike Kernea / Skyline, FA 1775278 (Forum April 19, 2018):
The mere addition of a gTLD [to a UDRP complainant’s mark to form a domain name] is inconsequential and does not avoid a finding of identity.
This is because every domain name requires a gTLD.
See also AbbVie, Inc. v. Ryan Hammers, Case No. FA 720291 (Forum April 20, 2017) (finding the domain name <abbvie.one> confusingly similar to the ABBVIE mark because the addition of the gTLD “.one” to the mark of another in creating a domain name is immaterial to a Policy ¶ 4(a)(i) analysis). Further see SOCIÉTÉ JAS HENNESSY & Co v. chen guo xi, Case No. FA 659133 (Forum February 24, 2016) (finding the domain name <hennessy.one> substantively identical to a UDRP complainant’s HENNESSY mark)
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <indeed.one> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <indeed.one> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the INDEED mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Alvaro Lemos,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA 626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent makes no active use of the <indeed.one> domain name except to employ it to facilitate a fraudulent phishing scheme by which it passes itself off as Complainant in order to collect Internet users’ personal and business information and to profit from the exploitation of that information. This use is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial of fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017):
Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We have found from the evidence that Respondent makes no active use of the <indeed.one> domain name except to employ it to facilitate a fraudulent phishing scheme by which it passes itself off as Complainant in order to collect Internet users’ personal and business information, including their email addresses and passwords, and to profit financially from the exploitation of that information. Under Policy ¶ 4(b)(iv), this behavior demonstrates Respondent’s bad faith in registering and using the domain name. See United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018):
Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.
It is also plain from the evidence that Respondent knew of Complainant and its rights in the INDEED mark when Respondent registered the <indeed.one> domain name. This further shows Respondent’s bad faith in registering the domain name. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
[T]he Panel here finds actual knowledge [and therefore bad faith registration of it] through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has satisfied its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <indeed.one> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 18, 2018
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