Coupang Corporation v. chen ki
Claim Number: FA1905001844179
Complainant is Coupang Corporation (“Complainant”), represented by B. Brett Heavner of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, United States of America. Respondent is chen ki (“Respondent”), Singapore.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <coupangx.com>, <coupangcloud.com>, <coupangclouds.com>, <coupangdata.com>, <coupangeatscourier.com>, <coupangfamily.com>, <coupangfriends.com>, and <coupanglogistics.net>, registered with TurnCommerce, Inc. DBA NameBright.com.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 21, 2019; the Forum received payment on May 21, 2019.
On May 21, 2019, TurnCommerce, Inc. DBA NameBright.com confirmed by e-mail to the Forum that the <coupangx.com>, <coupangcloud.com>, <coupangclouds.com>, <coupangdata.com>, <coupangeatscourier.com>, <coupangfamily.com>, <coupangfriends.com>, and <coupanglogistics.net> domain names are registered with TurnCommerce, Inc. DBA NameBright.com and that Respondent is the current registrant of the names. TurnCommerce, Inc. DBA NameBright.com has verified that Respondent is bound by the TurnCommerce, Inc. DBA NameBright.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 21, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@coupangx.com, postmaster@coupangcloud.com, postmaster@coupangclouds.com, postmaster@coupangdata.com, postmaster@coupangeatscourier.com, postmaster@coupangfamily.com, postmaster@coupangfriends.com, postmaster@coupanglogistics.net. Also on May 21, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 12, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
On June 13, 2019, the Forum received a timely Additional Submission from Complainant pursuant to the Forum's Supplemental Rule #7.
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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is one of the largest and fastest-growing online retail shopping companies in the world. Powered by innovative technology and operations, it is transforming the customer experience—from revolutionizing last-mile delivery to rethinking how customers search for and discover products on mobile platforms. Complainant’s online marketplace offers a wide variety of consumer, business, and industrial products, including food. In 2016, Complainant’s sales were $1.7 billion. Today, Complainant maintains operations in Beijing and Shanghai, China, South Korea, Mountain View, California, and Seattle, Washington, and ships as many as 1.7M retail units in a single day. Complainant’s shopping app has been listed in the Top 20 popular apps on both the Google Play Store and Apple App Store—the only shopping-related app to make the list. Complainant uses its mark COUPANG in connection with its online ordering services. Complainant has rights in the COUPANG mark based on registration in Korea and in the United States in, respectively, 2012 and 2017.
Complainant alleges that the disputed domain names are confusingly similar to its COUPANG mark, as they all incorporate the mark in its entirety, with the mere addition of generic/descriptive terms such as “cloud(s),” “data,” “eats courier,” “family,” “friends,” and “logistics,” the letter “x,” and generic top-level domains (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized Respondent to use the COUPANG mark in any manner. Respondent’s use of the disputed domain names does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain names are not being used. Further, the <coupangx.com> domain name, which adds the letter “x” to Complainant’s mark, is an act of typosquatting. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain names in bad faith. Respondent intentionally seeks to attract Internet users to its websites by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites. Respondent has exhibited a pattern of bad-faith domain registrations. The disputed domain names are not being used. Respondent’s registration of the <coupangx.com> is an act of typosquatting. Further, Respondent had actual knowledge of Complainant’s rights in the COUPANG mark prior to registering the disputed domain names. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
C. Additional Submissions
In its Additional Submission, Complainant states that the day after the Complaint was served on Respondent, Respondent sent an e-mail to Complainant offering to sell the disputed domain names for $1,000 each. Complainant provides evidence to that effect and alleges that this is further evidence of bad faith registration and use. Complainant cites UDRP precedents to support its position.
Complainant owns the mark COUPANG and uses it to provide online retail shopping services around the world. The mark is well known.
Complainant’s rights in its marks date back to at least 2010.
The disputed domain names were registered as follows:
|
Domain Name |
Registration Date |
|
<coupangx.com> |
Dec. 4, 2018 |
|
<coupangcloud.com> |
Nov. 19, 2018 |
|
<coupangclouds.com> |
Dec. 27, 2018 |
|
<coupangdata.com> |
Dec. 27, 2018 |
|
<coupangeatscourier.com> |
Mar. 30, 2019 |
|
<coupangfamily.com> |
Dec. 4, 2018 |
|
<coupangfriends.com> |
Dec. 4, 2018 |
|
<coupanglogistics.net> |
Nov. 11, 2019 |
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain names are not being used. Respondent has engaged in a pattern of abusive registration of domain names. Respondent offered to sell the disputed domain names to Complainant for an amount in excess of out of pocket costs.
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."
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.
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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain names all incorporate Complainant’s mark in its entirety, with the mere addition of generic/descriptive terms such as “cloud(s),” “data,” “eats courier,” “family,” “friends,” and “logistics,” the letter “x,” and gTLDs. Generally, the addition of generic/descriptive terms, additional letters, and/or a gTLD is not sufficient to overcome a confusing similarity analysis per Policy ¶ 4(a)(i). See Caterpillar Inc. v. Quin, D2000-0314 (WIPO June 12, 2000) (finding that the disputed domain names <caterpillarparts.com> and <caterpillarspares.com> were confusingly similar to the registered trademarks CATERPILLAR and CATERPILLER DESIGN because “the idea suggested by the disputed domain names and the registered trademarks is that the goods or services offered in association with [the] domain name are manufactured by or sold by the Complainant or one of the Complainants [sic] approved distributors. The disputed trademarks contain one distinct component, the word Caterpillar”); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Accordingly, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the COUPANG mark in any way. Respondent is not commonly known by the disputed domain names: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies the owner of the disputed domain names as “chen ki.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain names.
The disputed domain names are not being used. Failure to make an active use of a domain name demonstrates that Respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Accordingly, the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).
Respondent has offered to sell the disputed domain names for an amount in excess of out of pocket costs. This does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Forum July 31, 2000) (finding no rights or legitimate interests where the respondent registered the domain name with the intention of selling its rights); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name).
For all these reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
The disputed domain names are not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, Complainant’s trademark is well known. It is difficult to envisage any use of the disputed domain names that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no response to the Complaint. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain names are not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
Further, Respondent has been held to have registered at least four domain names in bad faith in prior UDRP proceedings. Generally, evidence that a respondent has demonstrated a pattern of bad faith registrations may support a subsequent finding of bad faith registration under Policy ¶ 4(b)(ii). See The Toronto-Dominion Bank v. Ryan G Foo / PPA Media Services / Jinesh Shah / Whois Privacy Corp. / Domain Administratory / Fundacion Private Whois / Domain Admin / Whois Privacy Corp, FA1408001576648 (Forum Jan. 12, 2015) (“The Panel determines that Respondent’s documented history of adverse UDRP rulings, as well as Respondent’s multiple registrations relating to Complainant’s marks, are independently sufficient to constitute a pattern as described by Policy ¶ 4(b)(ii). Therefore the Panel finds bad faith under the provision.”). Here, Complainant provides screenshots showing Respondent’s prior adverse UDRP actions. Therefore, the Panel finds that Respondent registered the disputed domain names in bad faith also under Policy ¶ 4(b)(ii).
In addition, as noted above, Respondent offered to sell the disputed domain names for an amount in excess of out of pocket costs. This is sufficient to establish bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Dollar Rent A Car Sys., Inc. v. Jongho, FA 95391 (Forum Sept. 11, 2000) (finding that the respondent demonstrated bad faith by registering the domain name with the intent to transfer it to the complainant for $3,000, an amount in excess of its out of pocket costs); see also George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the< gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). Thus, the Panel finds that Respondent registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(i).
Finally, by merely adding the letter “x” to Complainant’s mark in the domain name <coupangx.com>, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii) for the domain name <coupangx.com>.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coupangx.com>, <coupangcloud.com>, <coupangclouds.com>, <coupangdata.com>, <coupangeatscourier.com>, <coupangfamily.com>, <coupangfriends.com>, and <coupanglogistics.net> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 13, 2019
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