Taboola.com Ltd. v. YangZhiChao
Claim Number: FA2203001990337
Complainant is Taboola.com Ltd. (“Complainant”), represented by Jessica Galluccio of Taboola.com Ltd., Israel. Respondent is YangZhiChao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <taboolanew.com>, (‘the Domain Name’) registered with 22net, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 30, 2022; the Forum received payment on March 30, 2022. The Complaint was received in English.
On March 30, 2022, 22net, Inc. confirmed by e-mail to the Forum that the <taboolanew.com> Domain Name is registered with 22net, Inc. and that Respondent is the current registrant of the name. 22net, Inc. has verified that Respondent is bound by the 22net, Inc. 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 April 5, 2022, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of April 25, 2022 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@taboolanew.com. Also on April 5, 2022, the Chinese and English language 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 April 29, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant is the owner of the marks TABOOLA and TABOOLA NEWS registered, inter alia, in the USA for Internet search services with first use recorded as 2007 and 2019 respectively. It owns TABOOLA.com.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s TABOOLA NEWS mark only omitting the letter ‘s’ from it and adding the gTLD “.com”.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for commercial pay per click links. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the marks TABOOLA and TABOOLA NEWS registered, inter alia, in the USA for Internet search services with first use recorded as 2007 and 2019 respectively. It owns TABOOLA.com.
The Domain Name registered in 2022 has been used for commercial pay per click links.
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 Domain Name consists of a misspelled version of the Complainant's TABOOLA NEWS mark (which is registered in USA for internet search services with first use recorded as 2019) merely omitting the letter ‘s’, and adding the gTLD “.com”.
The Panel agrees that misspellings such as omission of a letter ‘s’ does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy. See Lockheed Martin Corporation v. toyosei maruyama, FA 1620489 (Forum July 7, 2015) (“Simply removing the letter ‘s’ from a mark in the creation of a domain name still creates a confusingly similar domain name.”); see also Bare Escentuals Beauty, Inc. v. PPA Media Services / Ryan G Foo, FA 1572597 (Forum Sept. 30, 2014) (establishing a confusing similarity between the <baremineral.com> domain name and the BARE MINERALS trademark under Policy 4(a)(i)).
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. 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).
The Domain Name has been used for commercial pay per click links which does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of .. domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
The Respondent has not answered this Complaint or explained why he should be entitled to make this use of the Domain Name.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent is using the Domain Name to point to pay per click links to make profit from promoting services not associated with the Complainant in a disruptive and confusing manner. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it disrupting the Complainant’s business. See Capital One Financial Corp v. DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum June 4, 2015).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and (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 <taboolanew.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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