DECISION

RH-Interactive Jobfinance v. Mooburi Services

Claim Number: FA0212000137041

PARTIES

Complainant is RH-Interactive Jobfinance, Paris, FRANCE (“Complainant”) represented by Raphael Richard, of CVFM.  Respondent is Mooburi Services, Bangkok, THAILAND (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <jobfinance.com>, registered with Iholdings.com, Inc. d/b/a Dotregister.com.

PANEL

On January 14, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist.

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on December 11, 2002; the Forum received a hard copy of the Complaint on December 3, 2002.

On December 4, 2002, Iholdings.com, Inc. d/b/a Dotregister.com confirmed by e-mail to the Forum that the domain name <jobfinance.com> is registered with Iholdings.com, Inc. d/b/a Dotregister.com and that Respondent is the current registrant of the name.  Iholdings.com, Inc. d/b/a Dotregister.com has verified that Respondent is bound by the Iholdings.com, Inc. d/b/a Dotregister.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On December 17, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 6, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@jobfinance.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.”  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

1. The <jobfinance.com> domain name is identical to Complainant's JOBFINANCE registered mark.

2. Respondent has no rights or legitimate interests in the <jobfinance.com> domain   name.

3. Respondent registered and used the <jobfinance.com> domain name in bad faith.

B. Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant holds a trademark registration in France (Reg. No. 3,034,820) for JOBFINANCE issued in 2000.  Complainant uses the mark in connection with advertising, business management, education, training, entertainment, and a variety of online services.  Complainant is one of France’s major job recruitment services specializing in the finance area.  Complainant provides information about available offerings in the financial job market, and also acts as a directory of bank websites.  Complainant currently uses the domain name <jobfinance.fr> to host its online services.

Complainant registered and began use of the <jobfinance.com> domain name on January 28, 2000.  Complainant inadvertently lost the renewal notice and was not able to renew the domain name registration before Respondent registered it.

Respondent registered the disputed domain name on March 8, 2002.  Respondent is using the disputed domain name in order to divert Internet users to its own “Ultimate Web Resources” search engine.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant has established that it has rights in the JOBFINANCE mark through the French trademark registration.

Respondent’s <jobfinance.com> domain name is identical to Complainant’s mark because it incorporates Complainant’s entire mark and merely adds the generic top-level domain “.com.”  The addition of the generic top-level domain “.com” does not create any distinct characteristics because top-level domains are a required feature of every domain name.  See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top-level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward with a Response.  Therefore, the Panel is permitted to make reasonable inferences in favor of Complainant and accept Complainant’s allegations as true.  See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”). 

Furthermore, based on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the <jobfinance.com> domain name.  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because Respondent never submitted a Response nor provided the Panel with evidence to suggest otherwise).

Before Respondent began use of the disputed domain name, Complainant held the registration and used <jobfinance.com> for its services.  Complainant’s prior registration of the domain name, coupled with Respondent’s failure to respond in this dispute, is evidence that Respondent has no rights or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii).  See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s prior registration of the same domain name is a factor in considering Respondent’s rights or legitimate interest in the domain name).

Furthermore, Respondent is using the disputed domain name in order to divert Internet users to its “Ultimate Web Resources” website.  Capitalizing on Complainant’s mark to divert Internet users to an unrelated website is not a use connected with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); see also Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that use of Complainant’s mark “as a portal to suck surfers into a site sponsored by Respondent hardly seems legitimate”).

There is no evidence on record that Respondent is commonly known by any name other than “Mooburi Services” or “Ultimate Web Resources.”  Respondent does not refer to JOB FINANCE or <jobfinance.com> on its website, nor has it submitted any evidence that establishes it is commonly known as JOB FINANCE or <jobfinance.com>.  Given these facts, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Paragraph 4(b) enumerates four situations that give rise to evidence of bad faith.  These four situations are not meant to be exclusive factors when determining whether or not a Respondent registered a domain name in bad faith.  The Panel also has the discretion to look at the totality of circumstances.  See Channel Tunnel Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in ¶4(b) of the Policy, is not conclusive that the Euro-tunnel.com domain name in issue was registered and is being used in bad faith”); see also Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy paragraph 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).

Complainant previously held the registration for <jobfinance.com> and used the domain name in connection with its business. Respondent registered the domain name immediately after Complainant failed to timely renew the domain name registration.  It can be inferred from this behavior that Respondent had actual knowledge of Complainant’s use of the domain name and rights in the JOB FINANCE mark.  Furthermore, registration of a domain name immediately after Complainant’s registration lapsed gives rise to an inference of registration in bad faith pursuant to Policy ¶ 4(a)(iii).  See InTest Corp. v. Servicepoint, FA 95291 (Nat. Arb. Forum Aug. 30, 2000) (finding that where the domain name has been previously used by Complainant, subsequent registration of the domain name by anyone else indicates bad faith, absent evidence to the contrary); see also BAA plc v. Spektrum Media Inc., D2000-1179 (WIPO Oct. 17, 2000) (finding bad faith where Respondent took advantage of Complainant’s failure to renew a domain name).

Respondent is using the <jobfinance.com> domain name to divert Internet users to its search engine “Ultimate Web Resources.”  Since Respondent generates revenues from the web traffic it diverts to this website it is using the disputed domain name to create a likelihood of confusion for commercial gain which is evidence of registration and use in bad faith pursuant to Policy ¶ 4(b)(iv).  See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain).

The Panel find that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby GRANTED.

Accordingly, it is Ordered that the domain name <jobfinance.com> be TRANSFERRED from Respondent to Complainant.

James P. Buchele, Panelist

Dated: January 16, 2003

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