Complainant is Kforce, Inc. of Tampa, Florida, United States of America, represented by Thomas & LoCicero PL, United States of America.
Respondent is Whois Privacy Protection Service, Inc. of Bellevue, Washington, United States of America / Yvonne Henry of Cape Coral, Florida, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 18, 2013. On January 21, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 21, 2013, 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 Complainant on January 22, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on January 28, 2013.
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 Respondent of the Complaint, and the proceedings commenced on January 29, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 18, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 19, 2013.
The Center appointed Andrew Mansfield as the sole panelist in this matter on February 28, 2013. 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
Complainant owns United States of America (“U.S.”) Trademark Registration No. 2,625,418 for the mark KFORCE for personnel placement and recruitment services, and business management consulting services. Complainant also owns U.S. Trademark Registration No. 2,494,832 for the mark KFORCE for personnel placement and recruitment services. Complainant also owns U.S. Trademark Registrations for the marks KFORCE & Design, KFORCE GLOBAL SOLUTIONS, and KFORCE KNOWLEDGE STAFFING MODEL. Complainant has used its KFORCE marks in commerce in the U.S. since at least as early as July 1, 1999. In addition, Complainant has a registration for KFORCE on the Register of Community Trade Marks, Certificate No. 007561335.
The disputed domain name was created on February 19, 2012. 5. Parties’ Contentions A. Complainant
Complainant informs the Panel that it offers technical staffing services and employment services for job seekers and professionals throughout the U.S., in the Philippines, and elsewhere. Fields in which Complainant offers its services include, but are not limited to, technology, finance and accounting, health care, and government. Customers include individuals seeking employment and companies seeking employees. Customers access Complainant’s services via the Internet and through field offices located in 64 markets. Complainant was incorporated in the State of Florida in 1994.
Complainant alleges that on March 19, 1999, Complainant (then known as “K”) registered the domain name . That domain name has been active since 1999 and is linked to an Internet site that offers Complainant’s services to its clients and the general public. The web site, Complainant indicates, provides listings of job openings, job-hunting information, job-seeking and career advice, a resume posting service, and general company information. Complainant states that it owns multiple other domain name registrations.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s KFORCE marks. The disputed domain name consists of Complainant’s mark plus the addition of the generic term “corporate.” Because the disputed domain name includes the identical KFORCE trademark, an Internet user viewing the web site would likely assume the web site is affiliated with Complainant. A generic suffix does not, according to Complainant, eliminate confusing similarity. In fact, Complainant argues that the “corporate” suffix exacerbates the potential for confusion, because a person encountering the disputed domain name is likely to assume that the associated web site is a source for “corporate” information (e.g., shareholder or investor information) concerning Complainant. The disputed domain name, therefore, is allegedly confusingly similar to Complainant’s KFORCE mark.
Complainant also posits that Respondent has no rights to any trademark consisting of or incorporating the word “kforce”. Respondent is not, according to Complainant, licensed or authorized to use Complainant’s trademarks. Respondent has no relationship with Complainant. Complainant states that it has not consented to nor acquiesced in Respondent’s use of its mark.
Complainant indicates that Respondent has never made any meaningful use of the disputed domain name. As recently as January 2013 the disputed domain name lead Internet users to an error page.
Complaint further alleges that the disputed domain name was registered and is being used in bad faith. Complainant argues that Respondent had constructive notice of Complainant’s trademark rights to KFORCE because KFORCE is a registered trademark in the U.S., where Respondent is located. Further, according to Complainant, Respondent’s passive holding of the disputed domain name without displaying any content is additional evidence of bad faith registration and use.
Complainant argues that the word “kforce” is not a word in common use and is not identified with a legitimate business or activity apart from the business of Complainant. Respondent has, according to Complainant, wrongfully and deliberately appropriated Complainant KFORCE mark and is holding the disputed domain name to profit from Complainant’s marks and associated goodwill.
Complainant requests that the disputed domain name be transferred to itself. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Complainant has the burden of proof in showing that each element within paragraph 4(a) of the Policy is present. These are as follows:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and,
(iii) The disputed domain name was registered and is being used by Respondent in bad faith.
Even when a respondent defaults, as is the case here, a complainant must establish and carry the burden of proof on each of the three elements identified above. See Brooke Bollea, a.k.a Brooke Hogan v. Robert McGowan,WIPO Case No. D2004-0383. Further, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate.”
The Panel proceeds to each of these elements below. A. Identical or Confusingly Similar
The Panel finds that the disputed domain names is confusingly similar to one of Complainant’s marks.
The disputed domain names is made up of Complainant’s U.S. registered trademark KFORCE. The only difference between the disputed domain name and Complainant’s registered trademark is the addition of a generic word “corporate” in the disputed domain name and the generic top-level domain (gTLD),“.com.”
Numerous UDRP decisions have reiterated that “the mere addition of common terms” to a trademark “does not change the overall impression of the designations as being a domain name connected to the Complainant.” PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS COMPUTER INDUSTRY (a/k/a EMS)WIPO Case No. D2003-0696; PepsiCo, Inc. v. Diabetes Home Care, Inc. and DHC Services,WIPO Case No. D2001-0174; Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil,WIPO Case No. D2000-1409; and America Online, Inc. v. Chris Hoffman,WIPO Case No. D2001-1184. In this case, the disputed domain name consists solely of the word “corporate” in addition to Complainant’s trademark KFORCE.
The Panel finds that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights and Complainant has therefore satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel is satisfied that Complainant has made out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent must carry the burden of demonstrating a right or legitimate interest in the disputed domain name. By matter of default, Respondent has failed to do so, and Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides the following non-exclusive examples of registration and use in bad faith. If found, any one of these elements, though non-exclusive, may be found to be evidence of the registration and use of the disputed domain name in bad faith:
(i) Circumstances indicating that Respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) Respondent has registered the disputed 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location or of a product or service on Respondent’s web site or location.
Complainant argues that Respondent had constructive notice of its KFORCE trademark because KFORCE is a registered trademark in the U.S., where the Respondent is located Complainant then argues that bad faith registration and use can be found after Respondent, with such constructive notice, fails to voluntarily transfer an allegedly infringing domain name, even where Respondent has not used or deployed the disputed domain name. This is referred to as passive use.
The Panel has reviewed all the circumstances set out in paragraph 4(b) of the UDRP and notes that Respondent has failed to respond to Complainant and has failed to participate in this proceeding. The Panel also notes that the circumstances set out in paragraph 4(b) of the UDRP are non-exclusive. Further, Respondent hid its identity through a so-called private registration service. The Panel additionally draws inferences from this lack of participation and the masking of Respondent’s identity. Accordingly, the Panel finds in the present circumstances that the disputed domain was registered and is being used in bad faith. See, e.g., Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393; and Intel Corporation v. The Pentium Group, WIPO Case No. D2009-0273.
The Panel finds that Complainant has satisfied paragraph 4(a)(iii) of the Policy. 7. Decision
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 be transferred to Complainant.
Andrew Mansfield
Sole Panelist
Date: March 15, 2013
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