WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CareerBuilder, LLC v. Moniker Privacy Services / Equifax Hostmaster / Domain Administrator
Case No. D2012-1840
1. The Parties
The Complainant is CareerBuilder, LLC of Chicago, Illinois, United States of America (“U.S.”) represented by Neal, Gerber & Eisenberg, U.S.
The Respondent is Moniker Privacy Services of Portland, Oregon, U.S.; Equifax Hostmaster of Atlanta, Georgia, U.S.; Domain Administrator of New York, New York, U.S.
2. The Domain Names and Registrar
The disputed domain names <careerbuiler.com> and <creerbuilder.com> are registered with Moniker Online Services, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 14, 2012. On September 14, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On September 17, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 18, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 20, 2012.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 28, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 18, 2012. An email sent by Equifax, Inc. was received on October 17, 2012.
The Center appointed Andrew J. Park as the sole panelist in this matter on November 7, 2012. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant CareerBuilder, LLC (the “Complainant” or “CareerBuilder”) is a limited liability company organized under the laws of Delaware with its principal place of business in Chicago, Illinois. The Complainant is a global leader in human capital solutions and has offered human resource services through its website “www.careerbuilder.com” for more than a decade.
The Complainant owns all right, title and interest in and to the marks CAREERBUILDER and CAREERBUILDER.COM in connection with the provision of a variety of human resources services, including providing online personnel recruitment, personnel management information and job search information services, providing interactive computer database featuring recruitment and employment information, employment advertising, career information and resources, etc. Among others, the Complainant owns U.S. Reg. No. 2082443, Canadian Reg. No. TMA548113, CTM Reg. No. 1199363, Mexican Reg. No. 640961, Indian Reg. No. 692944, and Hong Kong Reg. No. 300671788 covering the mark CAREERBUILDER, as well as U.S. Reg. No. 2823227 covering the mark CAREERBUILDER.COM. The trademarks CAREERBUILDER and CAREERBUILDER.COM are hereinafter referred to as the “CAREERBUILDER Marks.”
The disputed domain names are <careerbuiler.com> and <creerbuilder.com>. The disputed domain names are registered with Moniker Privacy Services, which is a proxy service that enables “real” owners of domain names to conceal their identity. Both of the disputed domain names redirect users to the website “www.onlinejobsites.org”, which uses the CAREERBUILDER Marks in the same stylization used by the Complainant and directs Internet users to a variety of pay-per-click websites providing hyperlinks to third-party sites, including the Complainant’s competitors’ websites.
The original Complaint only identified Moniker Privacy Services as a Respondent. After the Complaint was filed, the Registrar revealed that Equifax Hostmaster is the registrant for the disputed domain name <creerbuilder.com>, and Domain Administrator is the registrant for the disputed domain name <careerbuiler.com>. The Complainant then amended the Complaint to identity those entities as Respondents. The amended Complaint identifies Equifax Hostmaster of Atlanta, Georgia, U.S.; Domain Administrator of New York, New York, U.S. as the Respondents (collectively, the “Respondent”).
Equifax, Inc. (“Equifax”) filed a submission to the Complaint on October 17, 2012, in order to clarify the record regarding Equifax and the disputed domain names. Equifax provided:
“[t]o the best of its knowledge and belief, Equifax does not own or have any interest in, and has never owned or had an interest in, the Disputed Domains or any registrations thereof. As a result, Equifax Hostmaster and Equifax are not appropriate Respondents in the above-referenced matter. With respect to the appearance of Equifax’s name and certain Equifax contact information in the registration details for <creerbuilder.com>, we can only speculate that a person unknown to Equifax used the information without Equifax’s authorization. The email address for the registrant, i.e., firstname.lastname@example.org is completely unrelated to Equifax’s operations.”
Moniker Privacy Services and Domain Administrator did not reply to the Complainant’s contentions.
5. Parties’ Contentions
The Complainant contends that the disputed domain names are virtually identical to and confusingly similar to its CAREERBUILDER Marks. The Complainant also owns a domain name including the trademark at issue <careerbuilder.com>.
The Complainant submits that what the Respondent does is typical “typosquatting” conduct. Specifically, it is submitted that the disputed domain names intentionally use spelling variation of the CAREERBUILDER Marks as a way to take advantage of a corresponding mistake of an Internet user while typing the domain name of the Complainant.
The Complainant contends that the Respondent has no right to, or legitimate interest in, the disputed domain names. In particular, the Complainant contends that the Respondent is not referred to or commonly known as <creerbuilder.com> or <careerbuiler.com>. Indeed, the Respondent does not own any intellectual property rights for the terms: “Careerbuilder,” “Creerbuilder” or “Careerbuiler.” Moreover, the Complainant contends that the Respondent is using the disputed domain names to intentionally confuse Internet users by redirecting them to the website located at “www.onlinejobssites.org”, which uses the CAREERBUILDER Marks in the exact same stylization used by the Complainant and directs users to a variety of pay-per-click websites providing hyperlinks to third-party sites, including the Complainant’s competitors’ websites.
Finally, the Complainant contends that the Respondent has registered and used the disputed domain names in bad faith and with full knowledge of the CAREERBUILDER Marks. Indeed, the Complainant contends that “[b]y registering and maintaining two registrations that are so substantially similar to the CAREERBUILDER Marks, where Respondent is not known under that mark, and is not using it in connection with any business under the name, and the Domain Names resolve to another website, and where that site prominently features the CAREERBUILDER Marks in the exact stylization, including coloring, most often used by CareerBuilder, ‘the only reasonably conclusion is that Respondents have intentionally attempted to attract, for commercial gain, Internet users to the site at [<onlinejobsites.org>] by creating a likelihood of confusion’ with the CAREERBUILDER Marks.”
For all these reasons, the Complainant requests that the disputed domain names be transferred.
Moniker Privacy Services and Domain Administrator of New York did not reply to the Complainant’s contentions. As discussed above, Equifax, Inc. submitted a letter on October 17, 2012, providing that it was improperly named as a Respondent and it has never had any involvement whatsoever with the disputed domain names.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth three requirements, which have to be met for the Administrative Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the Respondent’s disputed domain names have been registered and are being used in bad faith.
The Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to paragraph 15(a) of said Rules. In accordance with paragraph 14(b) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.
A. Procedural Issue:
The disputed domain names are registered with Moniker Privacy Services, LLC, which is a proxy service to enable “real” owners of domain names to conceal their identities. During this proceeding, the Registrar identified Equifax Hostmaster as the registrant of the disputed domain name <creerbuilder.com>, and Domain Administrator of New York as the registrant of the disputed domain name <careerbuiler.com>. Based on representations made by Equifax, Inc., the Panel finds that Equifax, Inc. is not an appropriate Respondents in the above-referenced matter because it is not a registrant of the disputed domain name <creerbuilder.com>. Second, the Panel finds that there is insufficient information from which to properly identify who is the true beneficiary of the disputed domain name <careerbuiler.com> (hiding behind Domain Administrator) because the registrant did not provide valid contact information for Domain Administrator so as to reveal the identity of that entity and enable correspondence. In any event, in order to ensure proper implementation of its decision under the Policy, the Panel will still direct its decision against the two registrar-disclosed registrants of record for the disputed domain names, “Equifax Hostmaster” and “Domain Administrator”.
B. Identical or Confusingly Similar
In the present case, the Panel finds that the Complainant has established that the CAREERBUILDER Marks have become distinctive identifiers associated with the Complainant. The Complainant: owns registered trademarks for the CAREERBUILDER Marks in many countries around the world; is the registrant of domain name <careerbuilder.com>; is recognized as a global leader in human capital solutions in connection with the CAREERBUILDER Marks; and has offered human resource services through its website “www.careerbuilder.com” for more than a decade. Additionally, there is no evidence to suggest that there is a company or business other than the Complainant that uses the name in the same area of industry as the Complainant.
In this case, the disputed domain names are identical to the CAREERBUILDER Marks with a lack of one letter. The letter “a” is missing between the letters “c” and “r” in the disputed domain name <creerbuilder.com>. Similarly, the letter “d” is missing between the letters “i” and “l” in the disputed domain name <careerbuiler.com>. The removal of a single letter cannot prevent a finding of confusing similarity between the CAREERBUILDER Marks and the disputed domain names. See by analogy Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; Société Nationale des Chemins de Fer Français v. Miguel Casajuana, WIPO Case No. D2008-1593; and Red Bull GmbH. v. Grey Design, WIPO Case No. D2001-1035 concerning what is commonly referred to as “typosquatting”. The Panel finds that the Respondent intentionally used spelling variation of the CAREERBUILDER Marks as a way to take advantage of a corresponding mistake of Internet users while attempting to access the Complainant’s website “www.careerbuilder.com”.
As such, the Panel is satisfied that the disputed domain names create sufficient similarity to the CAREERBUILDER Marks to be confusingly similar (paragraph 4(a) of the Policy). Therefore, the Panel finds that the disputed domain names are identical or confusingly similar to the Complainant’s trademarks pursuant to the Policy, paragraph 4(a)(i).
C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances, if found by the Panel to be proved based on its evaluation of all evidence submitted, shall demonstrate rights to or legitimate interests in the disputed domain names. Those circumstances are described as follows:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or 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.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights to and/or legitimate interests in the disputed domain names. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph 14(b) of the Rules (see e.g., Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009; Isabelle Adjani .v. Second Orbit Communications, Inc., WIPO Case No. D2000-0867). The Complainant must nevertheless make out a prima facie case that the Respondent lacks rights or legitimate interests (see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
The Complainant has asserted that the Respondent has no relationship with or authorization from the Complainant to use its CAREERBUILDER Marks. There is nothing in the record to suggest that the Respondent has been commonly known by the disputed domain names. The Panel’s view is that these facts may be taken as proven in the circumstances of this case provided that they have not been denied by the Respondent.
The evidence, which is not denied by the Respondent, shows that the Respondent knew of and has sought to take unfair advantage of the similarity between the disputed domain names and the Complainant’s CAREERBUILDER Marks, in order to profit through the provision of related “pay-per-click” links through which it derives income. The Panel finds that this conduct is evidence of cyber squatting and does not constitute a right or legitimate use under paragraph 4(a)(ii) of the Po0licy. See, e.g., American Automobile Association Inc. v. Texas International Property Associates, WIPO Case No. D2007-0592.
Accordingly the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain names pursuant to paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Any one of the following conduct is sufficient to support a finding of bad faith:
(i) circumstances indicating that you have registered or you have 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 the Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
As already mentioned, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate its good faith in the registration or use of the disputed domain names.
Nevertheless, the Panel still has the responsibility of determining which of the Complainant’s assertions are established as facts, and whether the conclusions asserted by the Complainant can be drawn from the established facts (see Harvey Norman Retailing Pty Ltd v. Oxford-University, WIPO Case No. D2000-0944).
Bad faith can sometimes be inferred based on the fame of the Complainant’s marks, such that the Respondent was aware or should have been aware of the Complainant’s mark and claims of rights thereto (particularly in view of the Complainant’s use of its mark on the Internet). The Panel finds it highly doubtful that the Respondent would have registered the disputed domain names without having knowledge of the Complainant.
The Panel reasonably finds that since the CAREERBUILDER Marks are widely known, especially in the relevant community, it is very unlikely that the Respondent, at the time of registration or purchase of the disputed domain names, was not aware of the Complainant or its CAREERBUILDER Marks.
Accordingly, the evidence, which is not rebutted by the Respondent, shows that the Respondent has sought to take unfair advantage of the similarity between the disputed domain names and the Complainant’s CAREERBUILDER Marks, in order to profit through the provision of related pay-per-click links through which it derives income. Moreover, the Panel finds that the Respondent’s use of the disputed domain names amounts to a “bait and switch” strategy in order to draw in Internet users to access the Complainant’s website. Such conduct is misleading and the use of a confusingly similar domain name to lure Internet users to a website hosting links to providers of competing products is prima facie evidence of bad faith. See, e.g., American Automobile Association Inc. v. Texas International Property Associates, WIPO Case No. D2007-0592.
For the above reasons, the Panel finds that the Complainant has shown that the disputed domain names have been registered and are being used in bad faith by the Respondent.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <careerbuiler.com> and <creerbuilder.com> be transferred to the Complainant.
Andrew J. Park
Date: November 21, 2012