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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CareerBuilder, LLC v. Azra Khan
Case No. D2003-0493
1. The Parties
The Complainant is CareerBuilder, LLC, Chicago, Illinois, United States of America ("the Complainant"), represented by Latham & Watkins of United States of America.
The Respondent is Azra Khan, Rawalpindi, Pakistan ("the Respondent").
2. The Domain Name and Registrar
The disputed domain name <careeerbuilder.com> ("the Domain Name") is registered with iHoldings.com Inc. d/b/a DotRegistrar.com ("the Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 23, 2003. On June 24, 2003, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 24, 2003, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 July 1, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was July 21, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 24, 2003.
The Center appointed Tony Willoughby as the sole panelist in this matter on July 31, 2003. 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 is a Delaware Corporation based in Illinois, United States of America and engaged in the field of online recruitment.
The Complainant is the registered proprietor of a variety of trade/service mark registrations of and/or including its name CAREERBUILDER, the earliest of which being US registration number 2082443 for CAREERBUILDER (word) registered on July 22, 1997.
The Complainant operates a website at "www.careerbuilder.com".
By way of a sworn declaration dated June 12, 2003, Farhan Yasin, the Complainant’s Vice President of Business Development, testifies to the dramatic success of the Complainant’s business and to the substantial investment behind the brand. The Complainant has spent in excess of $100 million in advertising and promotional activity over the last seven years.
The Respondent registered the Domain Name on February 26, 2002.
On June 27, 2003, the Complainant’s representatives wrote to the Respondent drawing attention to the Complainant’s rights and seeking transfer of the Domain Name. The letter points out that "the domain name redirects the user to a competing online recruiting site – job.com".
The Respondent did not reply to that letter.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to the Complainant’s trade/service mark differing from that mark by the mere addition of an extra ‘e’. The Complainant observes that the addition of the extra ‘e’ has no material effect on the appearance or the sound of the name.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant points to its trade/service mark rights which predate the registration of the Domain Name. The Complainant asserts that the Respondent has no connection or affiliation with the Complainant and has not received any licence or consent (express or implied) to use the Complainant’s trade/service mark or any confusingly similar variation thereof in a domain name or in any other manner. The Complainant contends that the Respondent registered the Domain Name with a view to misleading internet users and diverting them for commercial gain. The Complainant contends that the Respondent cannot in these circumstances claim to be making a legitimate non-commercial or fair use of the Complainant’s mark.
The Complainant further contends that the Domain Name was registered in bad faith and is being used in bad faith.
The Complainant contends that the Respondent was at all material times well aware of the Complainant’s name and trade/service mark and the fame of its business conducted under that name and by reference to that trade/service mark.
The Complainant refers to the fact that its lawyers wrote to the Respondent, yet the Respondent failed to reply.
The Complainant contends that the Domain Name is a deliberate mis-spelling intended to deceive Internet users. The Complainant derides further support from the fact that the Domain Name was originally connected by the Respondent to a competing online internet based job hunting and recruitment service at "www.job.com".
The Complainant contends that the Respondent’s behaviour constitutes bad faith registration and use within the meaning of paragraph 4(b)(iv) of the Policy.
The Respondent has not responded.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered in bad faith and is being used in bad faith.
Where a Respondent who has been properly notified of the Complaint fails to respond, the Panel is entitled to draw such inferences as it considers appropriate (Rule 14(b)).
A. Identical or Confusingly Similar
The Domain Name is identical to the Complainant’s name and registered trade/service mark, save for the addition of an extra ‘e’, which, as the Complainant observes, does not affect in any material way either the appearance or the sound of the name.
Manifestly, the Domain Name is confusingly similar to the Complainant’s trade/service mark.
B. Rights or Legitimate Interests
The Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant has trade/service mark rights in respect of CAREER BUILDER and it has demonstrated to the satisfaction of the Panel that it has built up a significant reputation and goodwill under and by reference to that name and mark. The Complainant asserts and the Panel accepts that the Complainant has granted the Respondent no relevant rights to use its name or any variant of its name in this or any other way.
The Domain Name is a mis-spelling which has been connected to a website which competes with the Complainant’s website. While one might accept that the Complainant’s trade/service mark, being a name having a strongly descriptive flavour, is a name which a competitor in the field might have come up with independently, the same cannot be said of mis-spellings. The use of a mis-spelling of a famous name immediately raises suspicions and calls for an explanation.
The Respondent has a case to answer, yet the Respondent has provided no answer. In the circumstances, the Panel has no hesitation in finding that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
In light of the above, it is but a short step for the Panel to conclude that the Respondent deliberately registered the Domain Name as a mis-spelling of the Complainant’s trade/service mark and with a view to deceiving internet users for commercial gain. There is nothing before the Panel to suggest that that short step should not be taken.
Accordingly, the Panel finds that the Domain Name was registered in bad faith and is being used in bad faith within the meanings of paragraphs 4(a)(iii) and 4(b)(iv) of the Policy.
In light of the foregoing findings namely that the Domain Name is confusingly similar to a trade/service mark in which the Complainant has rights and that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered in bad faith and is being used in bad faith, the Panel directs that the Domain Name, <careeerbuilder.com>, be transferred to the Complainant.
Dated: August 5, 2003