U.S. Education Holdings LLC v. li zhou
Claim Number: FA1911001872884
Complainant is U.S. Education Holdings LLC (“Complainant”), represented by Michelle Hon Donovan of Duane Morris, LLP, United States. Respondent is li zhou (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <carringtoncollegesgroup.com>, registered with Blisternet, LLC.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 25, 2019; the Forum received payment on November 25, 2019.
On November 27, 2019, Blisternet, LLC confirmed by e-mail to the Forum that the <carringtoncollegesgroup.com> domain name is registered with Blisternet, LLC and that Respondent is the current registrant of the name. Blisternet, LLC has verified that Respondent is bound by the Blisternet, LLC 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 December 3, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 23, 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@carringtoncollegesgroup.com. Also on December 3, 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 December 28, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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" 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, U.S. Education Holdings LLC, provides educational services. Complainant has rights in the CARRINGTON COLLEGE mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,963,739, registered May 17, 2011). Respondent’s <carringtoncollegesgroup.com> domain name is confusingly similar to Complainant’s mark because it incorporates Complainant’s mark in its entirety, simply adding the letter “s,” the generic term “group,” and the “.com” generic top level domain (“gTLD”) to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <carringtoncollegesgroup.com> domain name. Respondent is not licensed or authorized to use Complainant’s CARRINGTON COLLEGE mark and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to host pay-per-click links unrelated to Complainant.
Respondent registered and uses the <carringtoncollegesgroup.com> domain name in bad faith. Respondent uses the disputed domain name to attract Internet users to its competing website for commercial gain. Further, Respondent had actual knowledge of Complainant’s rights in the CARRINGTON COLLEGE mark prior to the registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <carringtoncollegesgroup.com> domain name.
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”).
Complainant has rights in the CARRINGTON COLLEGE mark based upon the registration with the USPTO (e.g., Reg. No. 3,963,739, registered May 17, 2011). Registration of a mark with the USPTO is a valid showing of rights in a mark. See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)). Since Complainant provides evidence of registration of the CARRINGTON COLLEGE mark with the USPTO, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <carringtoncollegesgroup.com> domain name is confusingly similar to Complainant’s mark because it incorporates Complainant’s mark in its entirety, simply adding a generic term, an additional letter, and a gTLD to form the disputed domain name. Addition of descriptive/generic terms to a mark generally fails to create a distinct domain name that avoids confusing similarity under Policy ¶ 4(a)(i). See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”). Further, addition of a single letter does not negate a finding of confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See FCOA, LLC v. Domain Admin / Whois Privacy Corp., FA 1619791 (Forum June 23, 2015) (holding the <foresmost.com> domain name confusingly similar to the FOREMOST mark, noting that the domain name “makes a trivial addition to the trademark in the form of addition of the letter, ‘s.’”). Here, Complainant argues that Respondent simply adds the word “group,” the letter “s,” and the “.com” gTLD to Complainant’s mark to create the disputed domain name and therefore does not overcome confusing similarity to Complainant’s mark. The Panel finds that the disputed domain name is confusingly similar to the CARRINGTON COLLEGE mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <carringtoncollegesgroup.com> domain name. Specifically, Complainant argues Respondent is not licensed or authorized to use the CARRINGTON COLLEGE mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record identifies the registrant as “Li Zhou” and Complainant argues that there is no other evidence indicating a connection between Respondent and the disputed domain name. The Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use but instead uses the disputed domain name to redirect users to a website that is offering advertisements. Advertisements that divert traffic to third-party websites do not constitute a bona fide offering of goods or services, or a noncommercial or fair use per Policies ¶¶ 4(c)(i) & (iii). See TGI Friday’s of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) (”Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.”). Complainant provides screenshots of Respondent’s resolving webpages and argues that Respondent likely profits from the click-through fees and download opportunities that are features on its webpage. The Panel agrees and finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <carringtoncollegesgroup.com> domain name in bad faith. Specifically, Complainant claims Respondent attempts to attract, for commercial gain, users to the disputed domain name which features click-through advertisements that redirect users to third-party websites. Using a confusingly similar domain name to commercially benefit via, pay-per-click links can evince bad faith registration and use per Policy ¶ 4(b)(iv). See Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”). Complainant provides screenshots of the two websites that resolved from the disputed domain name and notes that Respondent likely benefits financially from the click-through fees and download links present on the sites. This is evidence of bad faith registration and use under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent likely had knowledge of Complainant’s rights in the CARRINGTON COLLEGE mark. For a finding of bad faith, actual knowledge of a complainant’s rights in a mark must be found and constructive knowledge is insufficient. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Complainant argues that Respondent had actual knowledge of Complainant’s rights in the mark based on the unique nature of the mark and the popularity of the mark. In addition, Respondent’s use of the misspelled version of Complainant’s mark, which includes the word “college” that directly relates to Complainant’s services, is a clear indication that Respondent was fully aware of Complainant’s business and brands when the disputed domain name was registered. The Panel finds Respondent’s use of the mark evidences actual knowledge of Complainant’s rights and finds Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <carringtoncollegesgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
January 8, 2020
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