Marvell Asia Pte, Ltd. v. zhao xing ming
Claim Number: FA2101001930486
Complainant is Marvell Asia Pte, Ltd. (“Complainant”), represented by Lisa Greenwald-Swire of Fish & Richardson, P.C., Minnesota, USA. Respondent is zhao xing ming (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <marvell.info>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
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 January 30, 2021; the Forum received payment on January 31, 2021.
On February 2, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <marvell.info> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 February 4, 2021, the Forum served the Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of February 24, 2021 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@marvell.info. Also on February 4, 2021, the Chinese 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 March 2, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, the resolving website is in English; two emails from Respondent to Complainant are in English; Respondent has received the Commencement Notification in Chinese and has chosen not to respond to the Complaint. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that it is a large, multinational corporation with a current market cap in excess of $36.1 billion. As one of the world leaders in semiconductor, integrated circuit, and related technologies, Complaint has established a strong reputation and commercial presence in every corner of the world, employing over 5,000 people through its offices in the United States, Bermuda, China, Denmark, Germany, India, Israel, Japan, Korea, the Netherlands, Singapore, Spain, Switzerland, Taiwan, the United Kingdom, and Vietnam. Last year alone, Complainant generated roughly $2.7 billion in sales. Complainant has rights in the MARVELL mark through its numerous registrations around the world, including in the United States in 1999, and in China and France in 2000.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark as it incorporates the mark in its entirety and merely adds the “.info” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its MARVELL mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead offers the disputed domain name for sale, for a price in excess of out-of-pocket-costs, both generally, and specifically to Complainant. The resolving website hosts pay-per-click links for products and services that are both competing with, and unrelated to, Complainant’s business. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent offers the disputed domain name for sale and hosts pay-per-link links on the resolving website. Additionally, Respondent passively holds the disputed domain and has failed to demonstrate a good faith use. Finally, Respondent had knowledge of Complainant’s rights in the MARVELL mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark MARVELL with rights dating back to at least 1999, and uses it to market a range of technology products.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website displays advertising links to products and services that compete with those of Complainant, as well as to unrelated products and services. The resolving website offers the disputed domain name for sale for a price in excess of out-of-pocket costs. Further, Respondent specifically offered to sell the disputed domain name to Complainant for a price 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 name incorporates Complainant’s mark in its entirely and merely adds the “.info” gTLD. Under Policy ¶ 4(a)(i), adding a gTLD is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See PepsiCo, Inc. v. Shah, FA 103934 (Forum Mar. 4, 2002) (finding the <pepsico.info> domain name identical to the complainant’s PEPSICO mark). Therefore, the Panel finds that the disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its MARVELL mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). Here, the WHOIS of record identifies Respondent as “zhao xing ming”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website hosts both competing and unrelated pay-per-click links; Respondent offers the domain name for sale for a price in excess of out-of-pocket costs both generally, and specifically to Complainant. This is not a bona fide offering of goods or services, nor legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name); see also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
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 name.
Indeed, as already noted, Respondent offers the disputed domain name for sale, both generally and specifically to Complainant, for a price in excess of out-of-pocket costs. Past panels have found bad faith registration and use under Policy ¶ 4(b)(i) where a Respondent offers a domain name for sale to the public or Complainant. See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).”); see also Capital One Financial Corp. v. haimin xu, FA 1819364 (Forum Jan. 8, 2019) (“A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Further, also as already noted, the resolving website displays pay-per-click advertising links to both competing and unrelated products and services. Under Policy ¶ 4(b)(iv), using a disputed domain name to host competing or unrelated pay-per-click links is generally considered bad faith attraction for commercial gain. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <marvell.info> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 2, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page