The Complainant is Seek Limited of Melbourne, Victoria, Australia, represented by KCL Law, Australia.
The Respondent is Hilton Cieon, seekprofiles of Pasay, Metro Manila, Philippines. 2. The Domain Name and Registrar
The disputed domain name is registered with Eranet International Limited (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 21, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 2017, and March 23, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 27, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 16, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 18, 2017.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on April 25, 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 is the proprietor of the trademark SEEK PROFILE, registered on September 9, 2016, in New Zealand under No. 1038841 with priority from March 4, 2016. It also has several other trademark registrations in Australia and New Zealand for trademarks SEEK and SEEK PROFILE, such as the New Zealand trademark Registration No. 316524 SEEK, filed on September 20, 1999, and registered on June 6, 2001.
The disputed domain name was registered on October 18, 2016, and has been used in a phishing scam. 5. Parties’ Contentions A. Complainant
Since late 1997, the Complainant has conducted an online employment classified advertising business in Australia and New Zealand under the trademark SEEK and domain name . The trademark SEEK PROFILE was first used in 2011 in connection with online employment and recruitment services.
The disputed domain name is identical or confusingly similar to the Complainant’s SEEK and SEEK PROFILE trademarks. The addition of the final letter “s” in the disputed domain name does not distinguish it from the Complainant’s SEEK PROFILE trademark.
The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not licensed the Respondent to use the disputed domain name and the Respondent is not commonly known by the disputed domain name.
The disputed domain name has been used in a phishing scam. The Complainant’s customers have received emails from an address containing the disputed domain name inviting the recipients to activate their accounts. The emails were designed to appear to have come from the Complainant and were signed “The Team at SEEK”. The Complainant suspects that personal information appearing in CVs may have been of interest to the operator of the phishing scam. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order to obtain the transfer of a domain name, a complainant must prove the three elements of paragraph 4(a) of the Policy, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant establish that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
The disputed domain name contains the Complainant’s trademark SEEK PROFILE in its entirety. The only difference is the addition of the letter “s” at the end of the disputed domain name. This minor addition is not sufficient to distinguish the disputed domain name from the Complainant’s trademark.
Also, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark SEEK. The disputed domain name combines the trademark with the common word “profiles”, which is not sufficient to distinguish the disputed domain name from the SEEK mark. Additionally, as noted above, when the Complainant’s mark SEEK is combined with the word “profiles”, this forms a trademark used by the Complainant.
On these grounds the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademarks and hence the first element of the Policy has been fulfilled. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires that the Complainant establish that the Respondent has no rights or legitimate interests to the disputed domain name.
The consensus view among UDRP panels is that once a complainant has made a prima facie showing indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. If the respondent fails to do so, the complainant may be deemed to have satisfied the second element of the Policy. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270, and paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The Complainant has credibly submitted that the Respondent is not a licensee of the Complainant, nor has it been otherwise allowed by the Complainant to use the Complainant’s trademark in a domain name or otherwise. The Respondent has not rebutted these arguments.
Accordingly, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. In light of the Panel’s findings below, the Panel finds there are no other circumstances which provide the Respondent with any rights or legitimate interests in the disputed domain name.
Therefore, the Panel finds that the second element of the Policy is fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant establish that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that [the respondent has] registered or has 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 [the respondent’s] documented out-of-pocket costs directly related to the domain name; or
(ii) [the respondent has] 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 [the respondent has] engaged in a pattern of such conduct; or
(iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business or competitor; or
(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”
The Complainant has argued and submitted evidence that the disputed domain name was used in a phishing scam as explained above in section 5.A. It is clear that the disputed domain name has been used to create a false association with the Complainant’s business in order to obtain information from the Complainant’s customers without them necessarily realizing it. Such information can be and often is used for different purposes, for example selling the information forward without the consent of the users of the Complainant’s services.
The Panel finds that the disputed domain name has been registered to attract, for commercial gain, Internet users to the Respondent’s website or other online location by creating a likelihood of confusion with the Complainant’s trademark. Essentially, the Respondent has passed itself off as the Complainant.
Based on the above, the Panel finds that the disputed domain name was registered and is being used in bad faith. Therefore, the Panel finds that the third element of the Policy has been fulfilled. 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.
Tuukka Airaksinen
Sole Panelist
Date: May 8, 2017
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