The Complainant is KIN, Inc., United States of America (“United States”), represented by Fross Zelnick Lehrman & Zissu, PC, United States.
The Respondent is Vitor Souza Ribeiro, AR Rahman, Liteb, India. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 31, 2020. On July 31, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 3, 2020, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 11, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 31, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 9, 2020. The Center appointed Jane Seager as the sole panelist in this matter on September 24, 2020. 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 United States corporation operating department retail stores, founded in 1962. The Complainant’s products include apparel, shoes, accessories, beauty, and home products, under third-party brands, as well as brands exclusive to the Complainant. The Complainant operates some 1,150 physical stores, as well as an ecommerce website at “www.kohls.com”. For use in connection with its retail store goods and services, the Complainant has registered a number of KOHL’S trademarks, including the following: - United States Trademark Registration No. 1772009, KOHL’S, registered on May 18, 1993; As part of its product line, the Complainant offers a Kohl’s-branded credit card under the name “Kohl’s Charge”. The consumer login for the Complainant’s Kohl’s Charge card is at a website titled “My Kohl’s Charge”. The Complainant also operates an employee website. The login for the Complainant’s employee portal is titled “MyHR”. The disputed domain name The disputed domain name On December 19, 2019, the Complainant sent a cease-and-desist letter to the Respondent, Vitor Souza Ribeiro, putting the Respondent on notice of the Complainant’s rights in the KOHL’S trademark, and requesting the voluntary transfer of the disputed domain names. The Respondent did not reply to the Complainant’s cease-and-desist letter. 5. Parties’ Contentions A. Complainant The Complainant asserts rights in the KOHL’S trademark. The Complainant submits that the disputed domain names are confusingly similar to the Complainant’s KOHL’S trademark. The Complainant argues that the omission of the apostrophe from the Complainant’s trademark, and the addition of the terms “my”, “hr” and “charge” to the Complainant’s trademark in the disputed domain names fails to eliminate any confusion between the disputed domain names and the Complainant’s trademark. The Complainant further notes that the phrases “My Kohl’s Charge” and “MyHR” are used by the Complainant in connection with its credit-card services and employee online portal respectively. The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain names. The Complainant asserts that there is no relationship between the Complainant and the Respondent that would give rise to any licence, permission, or authorization by which the Respondent could own or use the disputed domain names. The Complainant makes reference to the apparently fake “alumni” website to which a link on the website at “www.myhrkohls.info” redirects, and argues that there is a risk that the disputed domain names are being used in connection with a phishing scheme, which cannot establish rights or legitimate interests in the disputed domain names. The Complainant further asserts that the Respondent’s use of the disputed domain names trades on the fame of the Complainant’s trademark, which cannot constitute a bona fide use. The Complainant submits that the disputed domain names were registered and are being used in bad faith. The Complainant asserts that the WhoIs records for the disputed domain names do not contain accurate information, and that the Respondent has attempted to conceal its true identity in order to make it more difficult for the purposes of lawfully pursuing the disputed domain names. The Complainant argues that there is no basis for the Respondent to have chosen the disputed domain names, unless the Respondent was seeking to create an association with the Complainant. The Complainant argues that the disputed domain names are confusingly similar to the Complainant’s KOHL’S trademark, and also mimic phrases used by the Complainant in connection with its credit card and employee portals. The Complainant further asserts that given the fame of the Complainant’s trademark, consumers are likely to believe, mistakenly, that the disputed domain names are related to or associated with the Complainant. The Complainant submits that the disputed domain names appear to be being used in connection with a fraudulent phishing scheme. Finally, the Complainant notes that the Respondent’s websites lack any sort of disclaimer, and argues that the lack of a disclaimer of affiliation is purposeful and is in the furtherance of the Respondent’s phishing scheme. The Complainant requests transfer of the disputed domain names. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Procedural Matter: Consolidation of Multiple Respondents The Complaint has been filed against two nominally-distinct Respondents, “Vitor Souza Ribeiro” and “AR Rahman, Liteb”. As stated in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.2, where a complaint is filed against multiple respondents, UDRP panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. The Complainant refers to the following factors in arguing that the disputed domain names are subject to common control: (i) both of the disputed domain names were registered in 2017, (ii) the WhoIs records for both disputed domain names list the same registrant state/province, (iii) the websites at both disputed domain names are hosted by the same company, (iv) the websites at the disputed domain names are similar in nature, purporting to allow Kohl’s customers or employees to log into their accounts, and (v) the website at “www.mykholscharge.org” contains a link to the website at “www.myhrkohls.info”. The Panel finds that the above factors support the inference that the disputed domain names are either registered to the same individual, or are otherwise subject to common control. Neither of the named Respondents has come forward to oppose the Complainant’s arguments in support of consolidation. The Panel therefore accepts the Complainant’s request for consolidation. Unless specified otherwise, the Respondents are referred to collectively throughout this decision as the “Respondent”. 6.2. Substantive Matters In order to prevail in its Complaint, the Complainant is required to demonstrate, on the balance of probabilities, that it has satisfied the requirements of paragraph 4(a) of the Policy, namely: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names were registered and are being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant has established rights in the KOHL’S trademark by virtue of its registration and use, the details of which are provided in the factual background section above. The disputed domain name The disputed domain name Prior UDRP panels have consistently held that where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element; see WIPO Overview 3.0, section 1.8. The Panel finds that the addition of the elements “myhr”, “my” and “charge” to the Complainant’s trademark in the disputed domain names does not prevent a finding of confusing similarity with the Complainant’s trademark, which remains recognizable in both disputed domain names. The gTLDs “.info” and “.org” may be disregarded for the purposes of comparison under the first element; see WIPO Overview 3.0, section 1.11.1. The Panel finds the disputed domain names to be confusingly similar to the Complainant’s KOHL’S trademark. The Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The websites to which the disputed domain names resolve purport to offer support services for users of the Complainant’s credit card and employee portals. The Panel notes that while several links on the website “www.myhrkohls.info” lead Internet users to the Complainant’s official website, at least one link leads to a third‑party website displaying a login page, that appears to be operated by the Complainant. The Complainant asserts that the third-party website is part of a fraudulent scheme designed to obtain the login credentials of the Complainant’s employees and credit card customers. The Panel also notes that the websites to which the disputed domain names resolve do not contain any disclaimer to clarify that they are not operated by the Complainant. In the Panel’s view, the Respondent’s websites attempt to create a misleading impression of being official support pages for the Complainant’s credit card and employee portals. The Panel considers that the provision of support services to the Complainant’s consumers and employees has potential to impact on the security of users of the Complainant’s online portals. While the Panel does not find there to be conclusive evidence of phishing in the present case, the Panel further notes that there is no relationship between the Parties that would confer any legitimate interests on the Respondent to provide such support services that would not entail some inherent risk to the Complainant’s consumers and employees. The Panel therefore finds that the Respondent is not using the disputed domain names in connection with any bona fide offering of goods or services, pursuant to paragraph 4(c)(i) of the Policy. The Respondent is listed in the WhoIs records for the disputed domain names as being “Vitor Souza Ribeiro” (in the case of The Panel further finds that the Respondent’s use of the disputed domain names, as described above, does not amount to any legitimate noncommercial or fair use, as contemplated by paragraph 4(c)(iii) of the Policy. Moreover, the presence of sponsored links to various third-party products on the Respondent’s websites signals an intent to capitalize on Internet traffic drawn to the Respondent’s websites through the perceived association between the Complainant’s trademark and the disputed domain names. The Respondent has not come forward to produce any evidence that would otherwise support a claim of rights or legitimate interests in the disputed domain names. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names. The Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The websites to which the disputed domain names resolve make extensive reference to the Complainant and the Complainant’s KOHL’S trademark. The Panel further notes that the disputed domain names themselves make reference to phrases used by the Complainant, i.e., the consumer login for the Complainant’s Kohl’s Charge card is at a website titled “My Kohl’s Charge”, while the login for the Complainant’s employee portal is titled “MyHR”. As noted above, the Respondent’s websites do not contain any disclaimer clarifying their non-affiliation with the Complainant. In light of the above, the Panel finds that the Respondent registered the disputed domain names, having no authorization from the Complainant to make use of its trademark, in a domain name or otherwise, with the intent to create a misleading impression of association with the Complainant, in bad faith. Despite having no affiliation with the Complainant, the Respondent has created what purport to be support pages for the Complainant’s services. In the absence of any authorization for the Respondent to make use of the disputed domain names in such a manner, not only does the Respondent’s use of the disputed domain names create confusion as to the source of the information provided, but also carries with it an inherent security risk to the Complainant’s consumers and employees. Moreover, as mentioned under the preceding section, the Panel also finds the Respondent’s inclusion of sponsored links to third-party products on the websites to which the disputed domain names resolve, from which the Respondent presumably derives click-through revenue, to be further evidence of the Respondent’s intent to capitalize on the Complainant’s trademark, in bad faith. The Panel finds that the Respondent has registered and is using the disputed domain names in bad faith. The Complainant has satisfied the requirements of 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 names Jane Seager
- United States Trademark Registration No. 2047904, KOHL’S, registered on March 25, 1997; and
- United States Trademark Registration No. 2292684, KOHL’S, registered on November 16, 1999.
Sole Panelist
Date: October 8, 2020
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