WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Hays plc v. Ngumbau Ngumbau, Updater Kenya

Case No. D2021-0088

1. The Parties

Complainant is Hays plc, United Kingdom, represented by Osborne Clarke, LLP, United Kingdom.

Respondent is Ngumbau Ngumbau, Updater Kenya, Kenya.

2. The Domain Name and Registrar

The disputed domain name <hays.services> is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 12, 2021. On January 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 13, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 14, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on January 15, 2021.

The Center verified that the Complaint together with the amended 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 January 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 15, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 19, 2021.

The Center appointed Lorelei Ritchie as the sole panelist in this matter on March 12, 2021. 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

Complainant is a professional recruitment services provider, based in the United Kingdom. Since at least 1986, Complainant has been offering its professional and other related employment recruitment services globally under the HAYS mark.

Complainant owns several registrations for its HAYS mark. These include, among others, United Kingdom Registration No. 1395978 (registered October 16, 1992); United States Registration No. 4043786 (registered October 25, 2011); and United Arab Emirates Registration No. 055031 (registered June 8, 2004) (in Arabic).

Complainant also owns domain name registrations that include its HAYS mark. These include <haysplc.com>. Complainant uses the URL associated with this domain name to inform prospective consumers and clients about professional recruitment and related services offered under its HAYS mark.

The disputed domain name <hays.services>, was registered on June 11, 2019.

The disputed domain name is not currently linked to an active website.

Respondent has nevertheless set up social media and email accounts associated with the disputed domain name to engage in potentially fraudulent behavior whereby Respondent has posed as an official representative of Complainant, seeking to obtain sensitive personal and financial information from prospective global recruits under the HAYS mark. Respondent has no affiliation with Complainant. Complainant has not authorized any activities by Respondent, nor any use of its trademarks thereby.

5. Parties’ Contentions

A. Complainant

Complainant contends that (i) the disputed domain name <hays.services>, is identical or confusingly similar to Complainant’s trademarks, (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith.

Specifically, Complainant contends that it owns the HAYS mark, which it uses globally. Complainant contends that Respondent has incorporated its well-known mark in full into the disputed domain name. Complainant contends that Respondent lacks rights or legitimate interest in the disputed domain name, and rather has registered and is using it in bad faith, having simply acquired the disputed domain name for Respondent’s own commercial gain. In particular, Complainant contends that Respondent has acted in bad faith in setting up social media and email accounts and posing as an official representative of Complainant, seeking to obtain sensitive personal and financial information from prospective global recruits under the HAYS mark.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel must first determine whether the disputed domain name <hays.services> is identical or confusingly similar to a trademark or service mark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.

The Panel finds that it is. The disputed domain name incorporates in full Complainant’s HAYS mark. Typically a Top-Level Domain may be ignored for purposes of considering this first element. See Compagnie Générale des Etablissements Michelin v. Whois Guard Inc., Whois Guard Protected / Saad Zaeem, Caramel Tech Studios,WIPO Case No. D2017-0234. Seealso Calvin Klein Trademark Trust, Calvin Klein, Inc. v. Whois Guard, Inc. / StayU Kasabov, WIPO Case No. D2015-2306.

The Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph (4)(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Panel next considers whether Complainant has shown that Respondent has no “rights or legitimate interest” as must be proven to succeed in a UDRP dispute. Paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering of goods or services”; (ii) demonstration that respondent has been “commonly known by the domain name”; or (iii) “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”.

Respondent did not submit a reply to the Complaint, however. Rather, as mentioned in Section 4 of this Panel’s decision, Respondent has used an email account associated with the disputed domain name to engage in apparent phishing scheme. Accordingly, the Panel finds that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interest in the disputed domain name, which Respondent has not rebutted.

The Panel therefore finds that Respondent lacks rights or legitimate interests in the disputed domain name for purposes of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] web site 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 or service on [the] web site or location”. As noted in Section 4 of this Panel’s decision, although the disputed domain name resolves to an inactive web page, Respondent has nevertheless set up social media and email accounts associated with the disputed domain name to engage in potentially fraudulent behavior whereby Respondent has posed as an official representative of Complainant, seeking to obtain sensitive personal and financial information from prospective global recruits under the HAYS mark.

Hence, Respondent is trading on the goodwill of Complainant’s trademarks to attract Internet users, presumably for Respondent’s own commercial gain. SeeWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 3.4, which notes that “use of a domain name for purposes other than to host a website may constitute bad faith. Such purposes include sending email, phishing [ ]. Many such cases involve the respondent’s use of the domain name to send deceptive emails, e.g., to obtain sensitive or confidential personal information from prospective job applicants, or to solicit payment of fraudulent invoices by the complainant’s actual or prospective customers”. The Panel thus finds that despite the passive website use, Respondent registered and used the disputed domain name with knowledge of Complainant’s prior rights, thereby evidencing bad faith.

Overall, the Panel finds that Respondent registered and used the disputed domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy.

7. Decision

For 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 <hays.services> be transferred to Complainant.

Lorelei Ritchie
Sole Panelist
Date: March 23, 2021