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WIPO Arbitration and
CareerBuilder LLC v. Karen Vithe
Case No. D2004-0370
1. The Parties
The Complainant is CareerBuilder LLC, a Delaware limited liability company with its principal place of business in Chicago, Illinois, United States of America. It is represented by Latham & Watkins LLP, United States of America.
The Respondent is Karen Vithe of Kherson, Ukraine.
2. The Domain Name and Registrar
The disputed domain name <careers-builder.com> is registered with OnlineNic,
Inc., d/b/a China-Channel.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 19, 2004. On May 21, 2004, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the domain name at issue. On May 25, 2004, OnlineNic, Inc. d/b/a China-Channel.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 7, 2004. 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”), 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 June 8, 2004. In accordance with the Rules, paragraph 5(a), the initial due date for Response was June 28, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 29, 2004.
The Center appointed Daniel J. Gervais as the sole
panelist in this matter on July 12, 2004. 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 CareerBuilder LLC. Since 1996,
it has been using the mark CAREERBUILDER in connection with online employment
and recruiting services. Such services include resume creation, posting and
transmittal and job search and information. The mark CAREERBUILDER has been
registered in the United States since 1997; in the European Union and Mexico
since 2000; and in Canada since 2001.
5. Parties’ Contentions
The Respondent registered and is using a domain name that is identical and confusingly similar to Complainant’s mark. The only difference between the Complainant’s marks and the disputed domain name is a hyphen and the addition of the letter “s”.
The Respondent has no legitimate interest in the disputed domain name. The Respondent has no connection with the Complainant.
The Complainant’s mark is well-known and has been widely used by the Complainant in connection its online services. The Respondent could not have been unaware of the Complainant’s rights in the mark. The disputed domain name resolves to career-related services (not the Complainant’s), thus interfering with the Complainant’s business and misleading consumers. The Respondent was informed of he Complainant’s rights by a cease-and-desist letter to which she responded by offering to sell the disputed domain name for a “proper price”, a sign of bad faith.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the domain name, the Complainant must prove that each of the three following elements is satisfied:
1. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section 6.B.1); and
2. The Respondent has no rights or legitimate interests in respect of the domain name (see below, section 6.B.2); and
3. The domain name has been registered and is being used in bad faith (see below, section 6.B.3.).
Paragraph 4(a) of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant.
Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint 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. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it considers appropriate.
1. Identical or Confusingly Similar
This question raises two issues: (1) does the Complainant have rights in a trademark; and (2) is the domain name identical or confusingly similar to such trademark or service mark.
As to the first question, the record confirms that the Complainant’s mark CAREERBUILDER is registered in the Canada, the European Union, Mexico and the United States. Therefore, the Panel finds that the Complainant has rights in the mark CAREERBUILDER.
As to the second question, the disputed domain name
is confusingly similar with the Complainant’s mark. The presence of the
hyphen and the letter “s” is not significant in terms of avoiding
confusion. See on this point the reasoning in BIC Deutschland GmbH &
Co KG v. Paul Tweed, WIPO
Case No. D2000-0418 (“TIPP-EX” trademark vs. the domain name
<tippex.com>); Deutsche Telekom AG v. Ginjupalli Krishna Kishore,
WIPO Case D2003-0391; and adidas-Salomon
AG v. Domain Locations, WIPO Case D2003-0489.
The Panel thus finds for the Complainant on this first point.
2. Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in the domain name based on Complainant’s prior use of the mark. The Respondent, whom did not file a Response, did not dispute this contention nor provide information as to its interests in using the domain name.
According to paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There were no elements introduced in evidence to show that the Respondent is or was commonly known by the domain name. There is no evidence that the Respondent is making a legitimate noncommercial or fair use of the domain name. To the contrary, the evidence suggests that the Respondent is using the disputed domain name for commercial gain and that such use of the domain name may tarnish the Complainant’s mark and mislead consumers.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the domain name.
3. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or 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) 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product.
There is evidence of the situations described in paragraphs 4(b)(i) and 4(b)(iv) of the Policy. The relevant facts are mentioned below.
The Complainant’s mark, though it is suggestive
of the services offered, has become well-known. See the reasoning on this point
in CareerBuilder, Inc., v. John Zuccarini, WIPO
Case No D2002-0282 and CareerBuilder, LLC v. Azra Khan, WIPO
Case No. D2003-0493 and CareerBuilder, Inc. v. Amcore & Company
For sale domains $250 or best offer, WIPO
Case No. D2003-0872.
Though it may or may not have been her primary intent,
an unsolicited offer to sell the domain name in response to a cease-and-desist
letter for amount exceeding out-of pocket costs may also be a sign of bad faith.
See AT&T Corp. v. Randy Thompson, WIPO
Case No. D2001-0830; and Systima Limited v. Willie Byrne, WIPO
Case No. D2001-0300.
In addition, the Respondent is using the disputed domain name for a seemingly commercial purposes creating a likelihood of confusion with the Complainant’s mark, which constitutes both bad faith registration and use under subparagraph 4(b)(iv) of the Policy.
The Panel finds for the Complainant on this third
element of the test.
For all the foregoing reasons, in accordance with
Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the
domain name, <careers-builder.com>, be transferred to the Complainant.
Daniel J. Gervais
Dated: August 3, 2004