Complainant is Accela, Inc., United States of America (“United States” or “U.S.”), represented by Hanson Bridgett LLP, United States.
Respondent is Privacy Protect, LLC (PrivacyProtect.org), United States / Olodo Gloria, Marlians Ent., United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2021. On November 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 4, 2021, the Registrar transmitted by email to the Center its verification response confirming that Respondent are listed as the registrants and providing the contact details. The Center sent an email communication to Complainant on November 19, 2021 asking for clarification regarding mutual jurisdiction. The Complainant filed an amendment to the Complaint on November 19, 2021.
The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on November 22, 2021.1 In accordance with the Rules, paragraph 5, the due date for Response was December 12, 2021. Respondent did not submit any Response. Accordingly, the Center notified Respondent’s default on January 5, 2022.
The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on January 17, 2022. 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 BackgroundComplainant owns a family of marks in the United States, the European Union and elsewhere including, for example, ACCELA, U.S. Trademark Registration No. 2875166 in International class 35, registered August 17, 2004.
The disputed domain name was registered on October 9, 2021. The webpage to which the disputed domain name routes is currently inactive.
5. Parties’ Contentions A. ComplainantComplainant avers that its ACCELA trademarks are used worldwide in connection with the company’s design and marketing of automated software products, cloud-based platforms and technology for the government sector. Complainant also avers that its ACCCELA-branded tools assist in the digital delivery of government services for over 275 million users, with an independent software developer community numbering over 1,500.
Complainant contends that Respondent uses the webpage to which the disputed domain name routes to mimic the design and appearance of the employment section of Complainant’s own “accela.com” website. Complainant also contends that Respondent employs Respondent’s disputed domain name for an elaborate phishing scheme to solicit job applications, to offer employment with Complainant’s companies, and to send checks or money orders to third parties. Complainant characterizes these activities as fraudulent attempts to gather sensitive personal information such as social security and bank account numbers, along with other private details.
Summarizing its legal contentions, Complainant alleges that (1) the disputed domain name is identical or confusingly similar to Complainant’s trademarks, (2) Respondent has no rights or legitimate interests in the disputed domain name, and (3) the disputed domain name was registered and is being used in bad faith, all in violation of the Policy.
On the basis of the above, Complainant requests transfer of the disputed domain name.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and Findings A. Notification of Proceedings to Respondent Olodo GloriaThe Policy and the Rules establish procedures to give respondents notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules).
Available records indicate that Respondent Privacy Protect LLC received the Center’s courier notification of these proceedings. The Center was unable to send to individual Respondent Olodo Gloria hard-copy notification of proceedings, however, because the physical address provided in the Registrant contact data was invalid. The Center also sent email notifications to contacts for Respondent provided by the Registrar.
No fax number was listed for Respondent in the Registrant contacts. The Center’s email notifications returned delivery errors. The Panel is satisfied that by sending communications to the email contacts provided by the registrant, listed in the WhoIs records and verified by the Registrar, the Center has exercised care and has fulfilled its responsibility under paragraph 2(a) of the Rules to employ all reasonably available means to serve actual notice of the Complaint upon Respondent.
B. Substantive Rules of DecisionThe Panel renders its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(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 has been registered and is being used in bad faith.
Complainant must establish these elements even if Respondent does not submit a Response. e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the reasonable factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009).
C. Respondent’s Use of theAnnexes to the Complaint contain exhibits that evidence the mimicry of Complainant’s “accela.com” website on Respondent’s website at “www.accelacareers.com”. The Annexes also contain emails showing that some members of the public were in fact tricked into submitting tax identification numbers and other confidential personal information in response to the false job solicitations. In the absence of any response by Respondent, the Panel finds Complainant’s exhibits to be credible evidence.
D. Identical or Confusingly SimilarThe Panel agrees with Complainant that the disputed domain name is confusingly similar to Complainant’s trademarks, as elaborated below.
UDRP panels generally disregard the domain name suffix in evaluating identity or confusing similarity. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 1.11. E.g., VAT Holding AG v. Vat.com,WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc.,WIPO Case No. D2006-1315.
Removing the suffix “.com”, the disputed domain name wholly incorporates Complainant’s ACCELA trademark. The Panel concludes that Respondent’s addition of the word “careers” does not prevent a finding of confusing similarity created by Respondent’s complete inclusion of Complainant’s mark in the disputed domain name. E.g., Sanofi-aventis, Sanofi-Aventis Deutschland GmbH v. Andrey Mitrofanov,WIPO Case No. D2007-1772; Giata Gesellschaft für die Entwicklung und Vermarktung interaktiver Tourismusanwendungen mbH v. Keyword Marketing, Inc.,WIPO Case No. D2006-1137; Hoffmann-La Roche Inc. v. Aneko Bohner,WIPO Case No. D2006-0629.
The Panel holds, therefore, that the Complaint fulfills the requirements of Policy paragraph 4(a)(i).
E. Rights or Legitimate InterestsThe Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i)-(iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a domain name, after which the burden of rebuttal passes to the respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005).
The Panel accepts the Complaint’s undisputed allegations that Respondent has no authorization to use Complainant’s trademarks and that Respondent is not commonly known by the disputed domain name. Similarly, the Panel accepts Complainant’s allegations and evidence showing that Respondent is not making bona fide use of the disputed domain name under the Policy.
The Complaint alleges that Respondent is using the disputed domain name to defraud third parties. Based on the submissions, the Panel agrees.
The Panel therefore finds that Respondent’s use of the disputed domain name demonstrates Respondent’s lack of a legitimate noncommercial interest in, or fair use of, the disputed domain name, without intent for commercial gain to misleadingly divert consumers.
The Complaint makes out a prima facie case. Filing no response, Respondent has not rebutted Complainant’s prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of rights or legitimate interests in use of the disputed domain name.
Accordingly, the Panel concludes that paragraph 4(a)(ii) of the Policy is satisfied.
F. Registered and Used in Bad FaithThe Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established, as elaborated below.
Respondent was undoubtedly aware of Complainant’s ACCELA mark, which had been registered and enjoyed widespread international use for many years before Respondent registered the disputed domain name to pursue its fraudulent scheme. The Panel finds that Respondent deliberately included Complainant’s mark in the disputed domain name to create confusion and attract Internet users to its website for commercial gain. This is evidence of bad faith registration and bad faith use. Policy, paragraph 4(b)(iv).
The registration and use of the confusingly similar domain name, without authorization, to impersonate the trademark owner in this case constitutes a strikingly clear example of registration and use in bad faith. See, e.g., ArcelorMittal (Société Anonyme) v. Myke Towers,WIPO Case No. D2021-2173. Moreover, UDRP Panels have often found phishing scams such as that evidenced by the materials submitted with the Complaint to provide ample support for a finding of bad faith. See, e.g., Advance Magazine Publishers Inc. v. Contact Privacy Inc. / Julia Burns,WIPO Case No. D2015-0617; CareerBuilder, LLC v. Stephen Baker,WIPO Case No. D2005-0251; Transformative Works v. Bradley Binkley,WIPO Case No. D2018-0132.
The Panel further finds that Respondent’s failure to reply to the Complaint and to submit accurate contact details to the Registrar is cumulative evidence of bad faith.
Consequently, the Panel concludes that the requirements of the third element of Policy Paragraph 4(a) are fulfilled.
7. DecisionFor 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,
Jeffrey D. Steinhardt
Sole Panelist
Date: January 31, 2022
1 All further references to “Respondent” signify the individual respondent Obodo Gloria.