WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Roth Staffing Companies, L.P. v. WhoisGuard, Inc. / Faizan Mujahid
Case No. D2017-1990
1. The Parties
The Complainant is Roth Staffing Companies, L.P., of Orange, California, United States of America (“United States”), represented by Akerman LLP, United States.
The Respondent is WhoisGuard, Inc., of Panama City, Panama / Faizan Mujahid of Rawalpindi, Pakistan.
2. The Domain Name and Registrar
The disputed domain name <ultimatestaffing.info> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2017. On October 12, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 12, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 16, 2017, 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 October 17, 2017.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 18, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 7, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 8, 2017.
The Center appointed James A. Barker as the sole panelist in this matter on November 14, 2017. 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 was founded in 1994 and provides staffing services across a wide variety of industries, servicing both individual candidates and businesses looking for candidates. The Complainant provides evidence of a long list of awards that it has received, which it says is evidence that it is both well-known and well-regarded.
The Complainant owns registrations in the United States for its marks, including ULTIMATE STAFFING (Registration No. 2907870) registered in 2004.
The Respondent registered the disputed domain name on February 21, 2017.
The Complainant provides evidence of the webpages at the disputed domain name. The webpages variously promote schemes for making money (the exact nature of the work involved in doing so is not however specified on these webpages). One webpage for example prominently includes the statement “Make Money And Change Your Life NOW! You Will Be Making REAL MONEY Working From The Comfort Of Your Own Home!”.
In the absence of a Response, there is little information about the Respondent or the nature of his business, other than what is self-evident from the website at the disputed domain name.
5. Parties’ Contentions
The Complainant uses its ULTIMATE STAFFING mark in connection with its services. The Complainant’s mark has developed significant goodwill due to the Complainant’s extensive promotion of its brand, beginning over two decades ago. In addition to its common law rights, the Complainant also owns registrations in the United States for its marks, including a mark for ULTIMATE STAFFING (Registration No. 2907870) registered in 2004 in class 35 for “temporary employee placement”. The Complainant also uses the domain name <ultimatestaffing.com>, which it first registered in 1997.
The Complainant says that the disputed domain name is identical to its ULTIMATE STAFFING mark and confusingly similar to the Complainant’s ULTIMATE marks.
The Complainant says that the Respondent registered the disputed domain name for the sole purpose of creating confusion from his fraudulent activities with the goal of profiting from them. The Complainant alleges that the Respondent uses the disputed domain name to impersonate the Complainant in emails to fraudulently induce the Complainant’s existing and future clientele to sign up for a program that promises too-good-to-be true income opportunities. (The Complainant provided examples of such emails.)
Once duped users are led to the Respondent’s website at <www.ultimatestaffing.info>, where they are prompted for contact information and, ultimately, payment. If a user does not sign up, they are greeted with the last chance to “get rich.” The Complainant provides one example of a webpage accessed via the disputed domain name. That webpage promises that “You’re going to make more money watching this video, and ANY other video ever created.” The next page requires payment of $97 for attending the course, if one even exists. The Complainant says that such deceitful activities are obviously in bad faith and require immediate transfer of the disputed domain name.
Having regard to this alleged conduct, the Complainant argues that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. The Respondent is not commonly known by the disputed domain name. The Respondent has not made a legitimate noncommercial or fair use of the disputed domain name and instead seeks to use it for fraudulent activities.
Finally, the Complainant argues that the Respondent has registered and is presently using the disputed domain name in bad faith. By incorporating the Complainant’s well-known trademark into the disputed domain name and using it to send impersonating emails to individuals seeking employment for the sole purpose of selling a get-rich-quick scheme, the Respondent is clearly using the disputed domain name in bad faith. The Complainant refers to prior WIPO panel decisions where panelists have found that similar impersonations are evidence of bad faith: e.g., Valero Energy Corporation, Valero Marketing and Supply Company v. Maurine flavour seafoods, WIPO Case No. D2013-1849: “the disputed domain name was used to contact people who have applied for, or indicated an interest in, fictitious job openings posted by the Respondent on various job boards. The Respondent has used the disputed domain name to create an email account ([…]@valero-energy.com) impersonating M. P. […], a senior officer of the Complainant and to make job offers to these applicants.” The panelist found that “[t]his type of use does not constitute a bona fide offering of goods or services” and that “course of fraudulent conduct in impersonating the Complainant´s officers by using an email with the disputed domain name is direct evidence of the Respondent’s bad faith.”
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
For the Complaint to succeed, under paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the disputed domain name is 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 name; and
(iii) the disputed domain name was registered in bad faith and is being used in bad faith.
The Complainant must prove each of these three elements, which are discussed in turn below.
A. Identical or Confusingly Similar
The Complainant provided evidence of its registered rights in various trademarks, including one for ULTIMATE STAFFING, registered in the United States. This evidence is sufficient to show that the Complainant has rights in a trademark for the purpose of this first element of the Policy.
The disputed domain name is clearly identical to the Complainant’s trademark. The Complainant’s mark is wholly incorporated in the disputed domain name, with no alteration. It is well-established under the Policy that the domain name extension (in this case “.info”) is not relevant for the purpose of determining whether the disputed domain name is identical or confusingly similar to the Complainant’s mark.
For these reasons, the Complainant has established its case under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has alleged that the Respondent lacks any rights or legitimate interests in the disputed domain name, including the illustrative circumstances of such rights or legitimate interests described in paragraph 4(c) of the Policy. And the Complainant has provided various evidence of the activities of the Respondent (addressed above and further below) which, the Complainant says, demonstrate that the Respondent cannot have such rights or legitimate interests. The Respondent has provided no contrary case to rebut these allegations and evidence against him.
On top of this, as noted in section 2.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition(“WIPO Overview 3.0”), “Panels have categorically held that the use of a domain name for illegal activity (e.g., impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.” The Complainant refers to specific prior decisions under the Policy to a similar effect. The Complainant provided direct evidence of the Respondent’s conduct which suggests that he was seeking to pass himself off as employees of the Complainant. Such conduct cannot be a basis for any rights or legitimate interests in the disputed domain name.
For these reasons, the Panel finds that the Complainant has established its case under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Bad faith may be established where there is evidence that the Respondent registered and used the disputed domain name with an intent to take advantage or otherwise abuse the Complainant’s trademark.
There is ample evidence in this case that this is what the Respondent has done. The Complainant provides evidence that the Respondent used the disputed domain name to send emails to prospective job seekers, asking them to submit “contact info” at the Respondent’s website, and signing off on these emails under names and positions described as e.g., “Administrative Director/Ultimate Staffing”. This evidence strongly indicates that the Respondent’s aim in registering and then using the disputed domain name has been to fraudulently represent himself as the Complainant, to direct traffic to his website that apparently offers commercial services. This evidence is clearly sufficient to establish the Respondent’s bad faith for the purpose of paragraph 4(a)(iii) of the Policy.
Although strictly unnecessary to go further, the Panel also notes that the Respondent has used a privacy service to conceal his identity. In the circumstances of this case, the Respondent’s use of a privacy service suggests that the Respondent had ‘something to hide’. This conduct only reinforces the Panel’s finding of bad faith.
For these reasons, the Panel finds that the Complainant has established its case under paragraph 4(a)(iii) of the Policy.
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 name <ultimatestaffing.info> be transferred to the Complainant.
James A. Barker
Date: November 28, 2017