The Complainant is Info Edge (India) Limited of New Delhi, India, represented by Lall Lahiri & Salhotra, Advocates Patent and Trademark Attorneys, India.
The Respondent is Abs, Abs IT Solution of Delhi, India. 2. The Domain Name and Registrar
The disputed domain name is registered with Net 4 India Limited (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 26, 2014. On September 29, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 7, 2014, 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.
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 October 8, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 28, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 29, 2014.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on November 4, 2014. 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 runs a recruitment portal from the domain name and has adopted and used the trademarks NAUKRI and NAUKRI.COM in connection with its business. The Complainant owns the registered trademarks for the mark and its variants, and has listed out the details: TRADEMARK REGISTRATION NUMBER CLASS DATE OF REGISTRATION
NAUKRI
888594
09
November 26, 1999
NAUKRI
888595
09
November 26, 1999
NAUKRI.COM
1262309
42
January 21, 2004
NAUKRI.ORG
1267614
42
January 21, 2004
NAUKRI.CO.IN
1266841
42
February 13, 2004
NAUKRIONMOBILE
1438563
42
March 27, 2006
NAUKRI.COM
1484179
35
September 4, 2006
NAUKRILEARNING
1603038
35, 41 and 42
September 18, 2007
NAUKRI.COM JOBFAIR( device mark)
1671140
35 and 42
April 1, 2008
NAUKRIGULF
1855611
35 and 42
August 27, 2009
The Respondent's name is given as Abs, Abs IT Solution, as per the publicly available WhoIs records. The Respondent registered the disputed domain name on July 25, 2014. 5. Parties' Contentions A. Complainant
The Complainant states it is a leading Internet company in India and runs India's number one jobsite from the domain name . The Complainant also owns "", a jobsite for the Middle East market. The Complainant states it has three thousand three hundred employees as on June 30, 2014 and has fifty-six offices located in forty-two cities in India and has overseas offices in Dubai (Mainland and Dubai Internet City), Bahrain, Riyadh, and Abu Dhabi.
The Complainant goes on to state that the domain name was first created in March 1997 for its online recruitment classified and related services and serves job seekers and corporate customers (employers, companies and recruitment consultants). The Complainant states due to its extensive use of the NAUKRI trademark, the word has acquired secondary meaning and is exclusively identified with the Complainant. As on June 30, 2014, the Complainant states its website "www." had a database of about thirty eight million registered job seekers with several hundred thousand live job listings.
The Complainant provides statistics of the job listings, unique customer service, average resumes modified per day, number of corporate customers, and average resumes added per day to its database. It has also provided revenue figures and advertisement expenditure in relation to its mark for the period 2008 to 2013 and copies of its advertisements and brochures published and circulated in India and other countries. The Complainant states it has filed applications for trademark registration under classes 9, 16, 35, 41 and 42 and is the first and original adopter of the mark. Due to considerable amounts spent on developing and promoting its services under the trademark NAUKRI and NAUKRI.COM, the Complainant states it enjoys popularity and recognition of the mark and the mark has become distinctive of its online recruitment services.
The Complainant asserts the Respondent has registered a deceptively similar domain name that is almost identical to its mark except for the inclusion of the letters "a" and "e". Such a difference is not sufficient to distinguish the Respondent's disputed domain name from its mark, and people may be misled, as the services offered from the websites are the same. The Complainant argues that the test of confusing similarity is determined by an objective bystander's view, and in the present case, the disputed domain name would be found as almost identical to the trademark in which the Complainant has rights under this test.
The Complainant states the Respondent has no rights or legitimate interests in the trademark and is not a lawful owner. The Respondent has not been authorized to use a close variant of its mark in the disputed domain name. The Complainant further argues that the Respondent is not commonly known by the disputed domain name. The Respondent registered the disputed domain name only recently on July 25, 2014, which is long after the Complainant has established its rights in the mark; therefore the Respondent has the burden to show its rights or legitimate interests in the disputed domain name. The Complainant argues that the Respondent's primary reason for registering the disputed domain name is to deliberately create confusion and an impression of association with the Complainant in order to derive profit or gain.
The Complainant states the Respondent has registered and is using the disputed domain name in bad faith. The Complainant states that the disputed domain name has been registered primarily for the purpose of disrupting the business of the Complainant. The Respondent offers identical services of online recruitment with intention of creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation or endorsement of the Respondent's services. The Respondent is defrauding customer of the Complainant by falsely representing association with the Complainant and even calling itself a branch of the Complainant. The Respondent is illegally extracting money from the Complainant's customers on pretext of providing them an opportunity of job interviews and asking them to deposit money while pretending to be working on behalf of the Complainant. The Complainant has submitted evidence of such misleading representations made by the Respondent and requests for the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
To obtain the remedy of transfer of the disputed domain name, the Complainant has to establish three requirements set out under paragraph 4(a) of the Policy. These are:
(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 lacks rights or legitimate interests in the disputed domain name; and
(iii) The disputed domain name was registered and is being used in bad faith by the Respondent. A. Identical or Confusingly Similar
The first requirement under paragraph 4(a) of the Policy stipulates the Complainant has to establish the disputed domain name is confusingly similar to a trademark or a service mark in which it has rights.
The Complainant has filed evidence of its rights in the NAUKRI and NAUKRI.COM trademarks that establishes both registered and unregistered rights in the mark. The Complainant's trademark registrations show it has statutory rights in the NAUKRI and NAUKRI.COM trademarks and its variants, as trademark registration creates a prima facie presumption of trademark rights in favour of the proprietor of the mark. See Backstreet Productions, Inc. v. John Zuccarini, Cupcake Party, Cupcake Real Video, Cupcake-Sho and Cupcake First Patrol,WIPO Case No. D2001-0654. (Trademark registration constitutes prima facie evidence of validity of trademark rights).
In addition, the Complainant has also established in these proceedings that it has unregistered common law rights in the said marks. The evidence filed by the Complainant shows use of the trademarks in course of commerce, in particular, the evidence adduced by the Complainant that establish its common law rights are its revenue turnover under the marks for a period of over five years, its promotional expenditure under the marks, advertisements and newspaper reports and other media reports pertaining to the Complainant's trademarks. Based on all this material, the Panel finds the Complainant has conclusively establish its rights in the NAUKRI and NAUKRI.COM trademarks.
The Panel finds the disputed domain name is phonetically and visually similar to the NAUKRI.COM trademark and is a misspelling of the mark. Misspellings in domain names do not prevent the domain names from being considered confusingly similar to the trademark. See Ticket Software LLC v Domains by Proxy, LLC/ Stephen Troy,WIPO Case No. D2013-0215 (Variants of the trademark that were misspellings of the trademark TICKETNETWORKS, were found to be confusingly similar to the trademark). Further, additional letters "a" and "e" in the disputed domain name do not change the overall impression of the designation as being similar to the trademark. See Sanofi-aventis v Nevis Domains LLC,WIPO Case No. D2006-0303. Such variants of a trademark are held to be "typosquatting" and normally will be found to be confusingly similar to the trademark. The Panel has no hesitation in finding the disputed domain name is a classic case of typosquatting and is confusingly similar to the Complainant's NAUKRI and NAUKRI.COM trademarks.
The Complainant has accordingly established the first requirement under paragraph 4(a) of the Policy that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The second element under paragraph 4(a) of the Policy requires the Complainant to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Complainant has asserted that the Respondent has not been given any authorization to use a virtually identical variant of its mark and the Respondent is not commonly known by the disputed domain name. Further, the facts of the case show the Respondent does not use the disputed domain name for any bona fide purposes, as the Respondent uses the disputed domain name for deliberately creating confusion and baiting customers by creating a false impression of association with the Complainant.
The Panel finds force in the submissions made by the Complainant, that the Respondent's use of the disputed domain name in such a manner suggests the Respondent is likely to have known of the popularity of the Complainant's mark in relation to online jobsite services, and therefore has registered a deceptive similar variant of the trademark for use in relation to jobsite services without any authorization from the Complainant who is the owner of the trademark. Such use has been found not to constitute bona fide use under the Policy in numerous previous UDRP decisions. See RapidShare AG and Christain Schmid v. rapidsharedvd, WIPO Case No. D2010-0616 (A disputed domain name that is likely to confuse users to falsely believe that the Respondent's website is being operated or endorsed by the complainant is not recognized as bona fide use under paragraph 4(c)(i) of the Policy). The Respondent has not responded in these proceedings and has not provided any explanation as to why the disputed domain name that is a confusingly similar variant of the trademark has been registered and used to offer identical services of online recruitment.
In the absence of any refutation of the Complainant's assertions or valid explanations by the Respondent and based on the circumstances of the case, the Panel is satisfied that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name as required under the paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The third element under paragraph 4(a) of the Policy requires the Complainant to establish that the disputed domain name has been registered in bad faith and is being used in bad faith.
Bad faith can be found if there are circumstances to suggest that the Respondent knew or ought to have known of the Complainant's mark while registering the disputed domain name and bad faith use can be found if there are circumstances to suggest the disputed domain name has been used in manner to take illegitimate advantage of the Complainant's trademark. See Janet E Sidewater v. WorldwideMedia Inc.,WIPO Case No. D2006-1281 (Registration of a domain name based on awareness of a complainant's mark, under certain circumstances, is recognized as bad faith registration under the Policy). Given the circumstances discussed in the present case, it is reasonable to infer that the Respondent has the requisite knowledge of the Complainant's trademark and has registered the disputed domain name in bad faith.
The Complainant has provided evidence that shows the Respondent has used the disputed domain name to create a likelihood of confusion with that of the Complainant's mark and attempted to defraud people by falsely representing to have an association with the Complainant. The evidence furnished by the Complainant to establish this fact is an email communication dated August 19, 2014 addressed to the Complainant from a third party, who had allegedly been cheated of its savings on assurances of being offered a job through the Respondent's jobsite at disputed domain name posing as the Complainant. The Panel finds the Respondent has intentionally registered the disputed domain name for the purpose of misdirecting unaware persons who by mistyping or misspelling the Complainant's trademark are unintentionally directed to the Respondent's website, which is recognized as bad faith use under the Policy. See National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini,WIPO Case No. D2002-1011.
Using the disputed domain name with intention of creating a likelihood of confusion with that of the Complainant's mark as to source, sponsorship, affiliation or endorsement of the Respondent's services by using an identical name or a close approximation for commercial gain from the goodwill and fame associated with the Complainant's mark indicates that the Respondent is deliberately trying to free ride on the Complainant's mark. The Panel finds the circumstances described here show the Respondent has tried to attract Internet users to its website in order to obtain commercial gain by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement by the Complainant, which is described as bad faith registration and bad faith use under paragraph 4(b)(iv) of the Policy.
For the reasons discussed, the Panel finds that the Complainant has established the disputed domain name was registered in bad faith and is being used in bad faith. 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 the Complainant.
Harini Narayanswamy
Sole Panelist
Date: November 15, 2014
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