DECISION

JOBS4 Ltd. v. Seungpil Nam

Claim Number:  FA0407000293540

PARTIES

Complainant is JOBS4 Ltd. (“Complainant”), Acre Lodge, Bridge Lane, Troutbeck, Windermere, Cumbria LA23 1LA, England.  Respondent is Seungpil Nam (“Respondent”), Youngdeungpoku, Seoul, Korea da-408, Gunyoung-apt Singil 3-Dong KR (150053).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <jobs4.com>, registered with Today and Tomorrow Co. Ltd.

PANEL

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

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on July 7, 2004; the Forum received a hard copy of the Complaint on July 7, 2004.  The Complaint was submitted in both Korean and English.

On Jul 13, 2004, Today and Tomorrow Co. Ltd. confirmed by e-mail to the Forum that the domain name <jobs4.com> is registered with Today and Tomorrow Co. Ltd. and that Respondent is the current registrant of the name. Today and Tomorrow Co. Ltd. has verified that Respondent is bound by the Today and Tomorrow Co. Ltd. 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 July 19, 2004, a Korean language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 9, 2004 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@jobs4.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.

On August 16, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Judge Harold Kalina (Ret.) as Panelist.

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.

Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <jobs4.com> domain name is identical to Complainant’s JOBS4 mark.

2. Respondent does not have any rights or legitimate interests in the <jobs4.com> domain name.

3. Respondent registered and used the <jobs4.com> domain name in bad faith.

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

FINDINGS

Complainant, JOBS4 Ltd., is a company located in the United Kingdom which provides online job recruitment and job advertising services. 

While Complainant purports to own a trademark registration for the JOBS4 mark, no evidence of a registration for the mark was provided.  Internet directories such as <yahoo.com>, <business.com> and Microsoft Small Business Directory return listings for Complainant in searches for JOBS4.  In a search on <google.com> conducted by Complainant, 3,000 of the 8,000 results returned in a search for JOBS4 included references to Complainant. 

Complainant provides its job search services at the <jobs4.info>, <jobs4.net> and <jobs4.org> domain names. 

Respondent registered the <jobs4.com> domain name on April 26, 2001.  Respondent has not used the domain name or made any demonstrable preparations to use the domain name. 

On March 29, 2004, Complainant e-mailed Respondent, informing Respondent of Complainant’s small company and asking Respondent if Respondent would be willing to sell the domain name registration.  On April 2, 2004, Respondent replied that it would be willing to sell the <jobs4.com> domain name registration to Complainant for $8,500.  Subsequently, on February 27, 2004, Respondent renewed the <jobs4.com> domain name registration.

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 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 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

The <jobs4.com> domain name registered by Respondent is identical to Complainant’s JOBS4 name because the domain name incorporates Complainant’s name in its entirety, adding only the generic top-level domain (gTLD) “.com.”  The mere addition of a gTLD is irrelevant to determining the identicalness of a 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 Victoria's Secret v. Hardin, FA 96694 (Nat Arb. Forum Mar. 31, 2001) (finding that the <bodybyvictoria.com> domain name is identical to Complainant’s BODY BY VICTORIA mark).

Although it is clear that the domain name is identical to Complainant’s name under the Policy, Complainant has not established any rights to JOBS4 as a mark.  Complainant has not provided any evidence of a registration for the JOBS4 mark, so Complainant must show that it has common law rights by establishing strong customer identification of the mark as an indication of Complainant as the source of products or services associated with the mark.  See Cyberimprints.com, Inc. v. Alberga, FA 100608 (Nat. Arb. Forum Dec. 11, 2001) (finding that Complainant failed to prove trademark rights at common law because it did not prove the CYBERIMPRINTS.COM mark was used to identify the source or sponsorship of goods or services or that there was strong customer identification of the mark as indicating the source of such goods or services); see also Molecular Nutrition, Inc. v. Network News and Publ’ns., FA 156715 (Nat. Arb. Forum June 24, 2003) (approving of and applying the principals outlined in prior decisions that recognized “common law” trademark rights as appropriate for protection under the Policy “if the complainant can establish that it has done business using the name in question in a sufficient manner to cause a secondary meaning identifiable to Complainant's goods or services”).

Complainant’s assertions that Internet searches for “JOBS4” return results for Complainant does not establish that the goods or services associated with JOBS4 are identifiable with Complainant.  Furthermore, Complainant’s contention that it uses JOBS4 with Internet users in 106 countries does not prove that customers strongly identify Complainant as the source of any goods or services offered under the JOBS4 name.  Therefore, the Panel finds that Complainant’s evidence is insufficient to establish common law rights through secondary meaning.  See Weatherford Int’l, Inc. v. Wells, FA 153626 (Nat. Arb. Forum May 19, 2003) (Although Complainant asserts common law rights in the WELLSERV mark, it failed to submit any evidence indicating extensive use or that its claimed mark has achieved secondary source identity . . . [a]lthough Complainant’s WELLSERV product and related services may be well-known among relevant consumers, that is a finding that must be supported by evidence and not self-serving assertions).  

            The Panel finds that Policy ¶ 4(a)(i) has not been satisfied. 

Since Complainant has failed to establish the first element of the Policy, it is unnecessary to address the claims under the remaining two elements.  See Creative Curb v. Edgetec Int'l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because Complainant must prove all three elements under the Policy, Complainant's failure to prove one of the elements makes further inquiry into the remaining elements unnecessary).

 

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is Ordered that the <jobs4.com> domain name REMAIN WITH Respondent.

Judge Harold Kalina (Ret.), Panelist

Dated:  August 26, 2004

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