WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION CA, Inc. and Computer Associates Think, Inc. v. Cheryl Jones Case No. D2009-1045 1. The Parties
The Complainants are CA, Inc. and Computer Associates Think, Inc. of New York State, United States of America, represented by Banki Haddock Fiora, Australia.
The Respondent is Cheryl Jones of Queensland, Australia. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 4, 2009. On August 4, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On August 13, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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 August 14, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was September 3, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 4, 2009.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on September 8, 2009. 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
According to the Complainants, CA Inc. was formerly Computer Associates, Inc., a multinational IT management software company, quoted on the NASDAQ stock exchange. Its history under various similar names dates back to 1976. Its name has been CA Inc. since 2006 in recognition of the fact that people called it by that name. The scale of the company is that it has 150 offices in more than 45 countries and, as at March 2008, employed around 13,700 people.
Computer Associates Think, Inc. is a wholly owned subsidiary of CA Inc. Computer Associates Think, Inc. is the proprietor of more than 100 registered trademarks in Australia and similar trademarks internationally. Many are for the letters CA in conjunction with other words or expressions such as CA-UNICENTER and CA-OPTIMIZER. Australian trademarks comprising the letters CA only, expressed in stylised form, include the following:
Number Classes Status
861922 9, 42 registered/protected
1084837 9, 42 registered/protected
CA, Inc is the registrant of domain names including:
.
No facts are available about the Respondent except those contained in the registration document of the disputed domain name, which was registered by the Respondent on June 19, 2009. 5. Parties' Contentions A. Complainants
The Complainants contend that they are significant international companies, having employed about 13,700 people. CA Inc. wholly owns subsidiary Computer Associates Think, Inc., which is the proprietor of more than 100 Australian trademark registrations containing, or in two instances comprising, the letters CA.
The Complainants own domain names including , , , and .
The Complainants contend that the disputed domain name is identical with or confusingly similar to the Complainants' trademarks. The relevant part of the domain name at issue is “ca-” which is effectively identical in part to the domain names owned and used by the Complainants. The addition of the word “managers” should not be relevant in determining whether a domain name is identical or confusingly similar to a trademark in the terms of paragraph 4(a)(i) of the Policy.
The Complainants further contend that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainants have never licensed or otherwise permitted the Respondent to use any of their trademarks or to apply for or to use any domain name incorporating any of those trademarks. The Respondent is not using and never intended to use the disputed domain name in connection with a bona fide offering of goods or services in the terms of paragraph 4(c)(i) of the Policy. The Respondent has never been known by the disputed domain name and has not acquired any trademark rights in the terms of paragraph 4(c)(ii) of the Policy. A search of the registers of business names and company names in Australia does not disclose a registration for “ca-managers,” , “camanagers” or “” in any State or Territory of Australia. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name in the terms of paragraph 4(c)(iii) of the Policy but is trying misleadingly to divert consumers and to tarnish the Complainants' trademark for commercial gain.
The Complainants further contend that the disputed domain name was registered and is being used in bad faith. The Complainants' account of key events may be summarised as follows.
A person (“applicant”) whose curriculum vitae was posted on a legitimate Internet website was shortly afterwards telephoned by someone claming to be a representative of an IT software firm called CA, with indications of being offered employment, and was asked to list their curriculum vitae on the website of the disputed domain name. Eventually the applicant had doubts and contacted the Complainants, whereupon it became clear that the approach to the applicant had not come from a source having any connection with the Complainants. The name of the applicant is disclosed confidentially in the Complaint.
The Complainants have set out details of inquiries made and publicly available background information causing them to believe that they have identified a relatively well-known Internet scam upon which the Respondent's activity is modelled. By this scam an applicant is offered fictitious employment and is induced to pay advance fees, which eventually are lost. The Complainants list a number of Internet websites that exchange information and publicise warnings about such scams.
The attention of the Panel is drawn to a document on the Respondent's website comprising a task manual running to several detailed pages.
According to the Complainants' contentions the registrar of the disputed domain name appears to be the registrar for a number of websites specifically associated with the type of advance fee scam described. It is also contended in some detail that the domain name server for the disputed domain name hosts the websites for a number of similar scams.
The Complainants contend that they made substantial efforts to identify and contact the Respondent using the details lodged in the registry. Letters and emails did not elicit a reply. A cease and desist letter dated June 30, 2009, sent by email and express post, was not replied to. An attempt to reach the Respondent by telephone was met with an answering machine and no reply has been received to a message left for Cheryl Jones. The Complainants believe the Respondent's contact details to be fictitious in contravention of the Respondent's Registration Agreement with the registrar.
The Complainants contend that the criteria of bad faith registration and use under paragraph 4(b) of the Policy are without limitation and that the issue is whether, in all the circumstances, the Respondent is acting in bad faith.
The Complainants submit that it is inconceivable that the Respondent registered the disputed domain name without knowledge of the Complainants' widespread use of and reputation in the name CA because the Complainants comprise one of the largest IT enterprises in the world. Registration of a domain name with such knowledge of the Complainants' widespread use of and reputation in the name is registration in bad faith.
The Complainants submit that there is evidence that the disputed domain name was registered and is being used in bad faith to deceive jobseekers into becoming involved in money laundering.
The Complainants have cited a number of previous UDRP decisions that they wish the Panel to consider as precedent.
The Complainants request that the disputed domain name be cancelled. B. Respondent
The Respondent did not reply to the Complainants' contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy states that the Respondent is required:
“…to submit to a mandatory administrative proceeding in the event that a third party (a ‘complainant') asserts to the applicable Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.”
The Complainants have made the relevant assertions as above. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute. A. Identical or Confusingly Similar
The Complainants must prove first that they have rights in a trademark, whether registered or otherwise, and second, that the disputed domain name is identical or confusingly similar to that trademark.
The Complainants certify that they hold specified Australian registered trademarks that, expressed in plain language, comprise the letters CA standing alone or in combination. Standing alone, the letters CA might appear to offer little in the way of distinction and to be capable of innocent usage on the Internet. Nevertheless the letters CA do comprise certain registered trademarks of the Complainants, through the subsidiary Computer Associates Think, Inc., and the Complainants in this case are found to have rights in the trademark CA within the meaning of paragraph 4(a)(i) of the Policy.
The Complainants must show that the disputed domain name is confusingly similar to their trademark. The disputed domain name is . This may be broken down into three components. One is “.com”, a technical component of the disputed domain name of no consequence in the determination of confusing similarity under the UDRP. The other two components are “ca” and “managers”, or in other words, the Complainants' trademark CA and the generic or descriptive word “managers”. It is well established in domain name jurisprudence that a generic or descriptive word does not necessarily detract from a finding of confusing similarity in respect of another component of a disputed domain name (see e.g., BP p.l.c. v. Kang-Sungkun Portraits Production,WIPO Case No. D2001-1097, in which the trademark was BP and the disputed domain name was ). The distinctive component of the disputed domain name is “ca”, which given the insignificance of any difference between upper and lower case in domain names, is indistinguishable from the Complainants' trademark CA. The Panel finds for the Complainants in the terms of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Since it may be inherently difficult for a Complainant to anticipate a Response and to prove in the negative that a Respondent does not have rights or legitimate interests in a disputed domain name, it is conventional under the UDRP for the Complainant to make out a prima facie case that the Respondent may seek to disprove in the terms of paragraph 4(c) of the Policy or otherwise.
The Complainants assert that they have never had any connection with the Respondent, have never authorised the Respondent to use the Complainants' trademark and have never authorised the Respondent to register the disputed domain name. In anticipation of any Response in the terms of paragraph 4(c) of the Policy, the Complainants assert that any use of the disputed domain name by the Respondent has not been bona fide since it exploits the Complainants' trademark; that the Respondent has never realistically been commonly known by a name corresponding to the disputed domain name; and that the use of the disputed domain name has not been noncommercial or fair.
The Panel finds that the Complainants have made out an adequate prima facie case to the effect that the Respondent does not have rights or legitimate interests in the disputed domain name. The Respondent has not replied and the Panel can find no evidence to suggest that the Respondent could establish such rights or legitimate interests. The Panel finds for the Complainants in the terms of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainants are required to prove that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four circumstances that, without limitation, shall be evidence of the registration and use of a domain name in 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 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 web site 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 your web site or location or of a product or service on your website or location.
According to the evidence, the disputed domain name has been used misleadingly to attempt to target persons engaged in the field of information technology (IT). The Panel has been provided with cogent evidence that a particular individual, being a job applicant with skills in the field of IT, was initially confused into believing that the Respondent's website corresponding to the disputed domain name was in some way endorsed by the Complainants and could lead to an offer of employment by the Complainants. The applicant discovered later by enquiry to the Complainants that this was not so, and provided the Complainant's with a report detailing the incident.
The Complainants have stated the principles of the well-known advance fee scam, whereby people are induced to part with money in advance to pay fictitious fees on the promise of employment or some other benefit that turns out to be fictitious. It has also been shown in evidence that the Respondent's website displays a lengthy document in the nature of a task manual that provides detailed instructions on how to act as an intermediary, receiving money from one party and forwarding it to another, such as might constitute money laundering. The prospective intermediary is advised, for example, when moving money from one account to another, to “go in a different direction each day” and to “save the [money handling] locations closest to your home location for emergencies”. It is well established that scams of this type have induced unsuspecting intermediaries to send good money urgently from their personal account against a purported deposit previously received but subsequently dishonoured.
It is not necessary to know the present Respondent's intentions, had contact with the applicant progressed further. The Panel finds on the facts that the website corresponding to the disputed domain name gave a clear impression of being the “HR” (human resources, or employment) department of “CA Managers”, which Internet users could confuse with the Complainants; that the applicant was induced to visit the site, and was initially caused to be confused into associating it with the Complainants. The Panel finds it implausible, on balance, that the Respondent's operation behind the Complainants' trademark could have any other intention than commercial gain. The Panel finds on the balance of probabilities that the Respondent intended to attract Internet users by confusion between the disputed domain name and the Complainants' trademark for commercial gain within the meaning of paragraph 4(b)(iv) of the Policy.
Neither the evidence submitted to the effect that the registrar of the disputed domain name appears to be the registrar of a number of websites specifically associated with the types of scams described, nor the evidence that the server hosting the disputed domain name is in use partly for a particular type of scam, was taken to be evidence, in and of itself, that the disputed domain name is in use for a scam.
The Panel finds on the balance of probabilities that the inability of the Complainants to contact the Respondent through any of the avenues of contact provided in the registration document was because the contact details were misleading. The Domain Registrant Agreement of Directi Internet Solutions Pvt Ltd d/b/a PublicDomainR, being a contract entered into between the Respondent and the registrar, provides at appendix C 1(1) - 1(5) that a registrant is required to keep all their contact details updated and current. The provision of false or misleading contact details by a Respondent is in contravention of the Registration Agreement with the registrar and is found in the present case to be further evidence of bad faith registration and use (see, e.g., Ebay Inc. v. E and Tony Caranci,WIPO Case No. D2000-1632). 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be cancelled.
Dr. Clive N.A. Trotman
Sole Panelist
Dated: September 22, 2009
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