DECISION

BrassRing, Inc. v. JCI Technologies, Inc.

Claim Number: FA0105000097154

PARTIES

Complainant is BrassRing, Inc., Santa Clara, CA, USA (“Complainant”) represented by Frank G. Long, of Morrison & Hecker LLP.  Respondent is JCI Technologies Inc., Victoria, BC, CA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <getjobsamerica.com> registered with Network Solutions, Inc.

PANEL

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.

Judge Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 7, 2001; the Forum received a hard copy of the Complaint on May 8, 2001.

On May 8, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <getjobsamerica.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 May 10, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 30, 2001 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@getjobsamerica.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 June 5, 2001 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin 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.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

The <getjobsamerica.com> domain name is confusingly similar to Complainant’s registered trademarks.

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

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

B. Respondent

No response was received from Respondent.

FINDINGS

Since 1990, Complainant has used the JOBSAMERICA mark to identify Complainant’s employment and job-search services.  Complainant registered the JOBSAMERICA service mark on the Principal Register of the United States Patent and Trademark Office as Registration No. 2,052,327 on April 15, 1997.  Complainant has been engaged in continuous use of the mark since its registration.  In 1995, Complainant registered the <jobsamerica.com> domain name, for use in connection with the promotion of its services.

Respondent registered the <getjobsamerica.com> domain name on March 5, 1999.  Respondent uses the <getjobsamerica.com> website in connection with employment and job-search services similar to that of Complainant.

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.

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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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 <getjobsamerica.com> domain name contains the JOBSAMERICA mark in its entirety, which is identical to the federally registered trademark of Complainant.  The addition of the generic word “get” to the JOBSAMERICA mark makes the <getjobsamerica.com> domain name confusingly similar to Complainant’s mark.  See NIIT Ltd. v. Venkatram, D2000-0497 (WIPO Aug. 4, 2000) (finding that the “domain name ‘myniit.com,’ which incorporates the word NIIT as a prominent part thereof, is confusingly similar to the Complainant’s trade name and trademark NIIT”); see also ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (finding that the “domain name MYSPORTSCENTER.COM registered by Respondent is confusingly similar to Complainant’s SportsCenter mark…”).

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

Rights or Legitimate Interests

Respondent has failed to come forward to demonstrate any rights or legitimate interests in the <getjobsamerica.com> domain name.  See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent any evidence of preparation to use the domain name for any legitimate purpose, the burden of proof lies with the Respondent to demonstrate that he has rights or legitimate interests).  Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to the domain name in dispute where Respondent fails to submit a response.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that “Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names”).

Respondent’s use of the disputed domain name to offer competing services of Complainant is not a bona fide offering of goods or services under Policy ¶ 4(c)(i).  See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from the Complainant's site to a competing website); see also The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that Respondent’s use of the confusingly similar domain names to sell competing goods of the Complainants was an illegitimate use and not a bona fide offering of goods).

There is no evidence in the record, and Respondent has not come forward to establish that it is commonly known by the <getjobsamerica.com> 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 the disputed domain name when Respondent is not known by the mark).

Furthermore, Respondent’s use of the disputed domain name is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) where the Respondent trades off the fame of Complainant’s marks to lure Internet users to his website for commercial gain.  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

The Panel therefore concludes that Respondent does not have any rights or legitimate interests in the <getjobsamerica.com> domain name and that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent’s registration and use of the disputed domain name to lure Internet users to the <getjobsamerica.com> website for commercial gain by creating a likelihood of confusion with the Complainant’s family of marks is evidence of bad faith under Policy ¶ 4(b)(iv).  See America Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that Respondent intentionally attempted to attract Internet users to his website for commercial gain by creating a likelihood of confusion with the Complainant’s mark by offering the same chat services via his web-site as the Complainant); see also Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site).

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

DECISION

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.

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

Honorable Ralph Yachnin (Ret), Panelist

Dated: June 8, 2001

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