Quibids Holdings LLC v. Song Bin
Claim Number: FA1301001480765
Complainant is Quibids Holdings LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Song Bin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <quibds.com>, registered with Guangzhou Ming Yang Information Technology Co., Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 17, 2013; the National Arbitration Forum received payment on January 17, 2013. The Complainant was submitted in both English and Chinese.
On January 20, 2013, Guangzhou Ming Yang Information Technology Co., Ltd confirmed by e-mail to the National Arbitration Forum that the <quibds.com> domain name is registered with Guangzhou Ming Yang Information Technology Co., Ltd and that Respondent is the current registrant of the name. Guangzhou Ming Yang Information Technology Co., Ltd has verified that Respondent is bound by the Guangzhou Ming Yang Information Technology 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 January 29, 2013, the Forum served the Chinese Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of February 19, 2013 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@quibds.com. Also on January 29, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 25, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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’s Contentions
1. Complainant contends that it has rights in the QUIBIDS mark, used in connection with online auction, retail, and gift card services, as well as a variety of consumer goods. Complainant asserts that it owns the registrations for the QUIBIDS mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,870,521 filed March 30, 2010; registered November 2, 2010). See Complainant’s Exhibit E.
2. The <quibds.com> domain name is confusingly similar to the QUIBIDS mark. The generic top-level domain (“gTLD”) “.com” that Respondent adds need not even be considered for the purposes of confusing similarity. The only other change made by Respondent is the elimination of a single letter of the mark in the disputed domain name.
3. Respondent has no rights or legitimate interests in the <quibds.com> domain name.
a. Respondent is not commonly known by the disputed domain name. Respondent is not sponsored by or legitimately affiliated with Complainant, and Complainant has not given Respondent permission to use the QUIBIDS mark.
b. Respondent is not using the <quibds.com> domain name for either a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent is using the <quibds.com> domain name to bring Internet users to a website operated by Complainant’s competitor. Presumably, Respondent receives consideration from those firms for driving traffic to them.
4. Respondent registered and is using the <quibds.com> domain name in bad faith.
a. There are other UDRP decisions that have found against Respondent.
b. Respondent’s registration and use of the <quibds.com> domain name is disruptive to Complainant’s business. Respondent is using the disputed domain name to bring Internet users to a website featuring products/services in direct competition with Complainant.
c. The <quibds.com> domain name resolves to a website run by a competitor of Complainant. Respondent presumably profits from immediately redirecting Internet users to the resolving website. A likelihood of confusion with Complainant’s mark and the <quibds.com> domain name exists and Respondent uses it to commercially benefit.
d. Respondent has engaged in a classic example of typosquatting. The second-level portion of the disputed domain name only differs from the QUIBIDS mark by a single letter. The <quibds.com> domain name is designed to take advantage of Internet users’ typographical errors.
B. Respondent’s Contentions
1. Respondent did not submit a Response.
1. Respondent’s <quibds.com> domain name is confusingly similar to Complainant’s QUIBIDS mark.
2. Respondent does not have any rights or legitimate interests in the <quibds.com> domain name.
3. Respondent registered or used the <quibds.com> domain name in bad faith.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant contends that it has rights in the QUIBIDS mark, used in connection with online auction, retail, and gift card services, as well as a variety of consumer goods. Complainant asserts that it owns the registrations for the QUIBIDS mark with the USPTO (e.g., Reg. No. 3,870,521 filed March 30, 2010; registered November 2, 2010). See Complainant’s Exhibit E. Panels have held that, regardless of the location of the parties, the registration of a mark with a federal trademark authority is evidence of having rights in the mark. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Furthermore, panels have consistently held that rights established by registration of a mark with the USPTO provide the registrant of the mark with rights dating back to the filing date of the registration. See Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”). Therefore, the Panel finds that Complainant has rights in the QUIBIDS mark pursuant to Policy ¶ 4(a)(i).
Complainant also alleges that the <quibds.com> domain name is confusingly similar to the QUIBIDS mark. Complainant asserts that the gTLD “.com” that Respondent adds need not even be considered for the purposes of confusing similarity. Panels have generally agreed, holding that the addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Complainant notes that the only other change made by Respondent is the elimination of a single letter of the mark in the disputed domain name. Panels have found that marks in a domain name that are altered by a single letter increase, rather than decrease, confusion. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Respondent’s <quibds.com> domain name is confusingly similar to Complainant’s QUIBIDS mark under Policy ¶ 4(a)(i).
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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <quibds.com> domain name. According to Complainant, Respondent is not commonly known by the disputed domain name. Complainant argues that Respondent is not sponsored by or legitimately affiliated with Complainant, and Complainant has not given Respondent permission to use the QUIBIDS mark. Further, the Panel may note that the WHOIS record for the <quibds.com> domain name lists “Song Bin” as the domain name registrant. The panel in Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006), held that all information on the record, including the WHOIS information, is evidence of whether a respondent is commonly known by a domain name. Therefore, the Panel finds that Respondent is not commonly known by the <quibds.com> domain name under Policy ¶ 4(c)(ii).
Complainant next alleges that Respondent is not using the <quibds.com> domain name for either a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant states that Respondent is using the <quibds.com> domain name to bring Internet users to a website operated by Complainant’s competitor. Presumably, Respondent receives consideration from those firms for driving traffic to them. See Complainant’s Exhibit H. Therefore, the Panel finds that Respondent’s use of the <quibds.com> domain name is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Florists’ Transworld Delivery v. Malek, FA 676433 (Nat. Arb. Forum June 6, 2006) (holding that the respondent’s use of the <ftdflowers4less.com> domain name to sell flowers in competition with the complainant did not give rise to any legitimate interest in the domain name).
Complainant argues that Respondent registered and is using the <quibds.com> domain name in bad faith. Complainant notes that there are other UDRP decisions that have found against Respondent. Complainant provides the Panel with a copy of the decisions from Backcountry.com, LLC v. Song Bin, FA 1317284 (Nat. Arb. Forum. Apr. 30, 2010), and Pet Holdings Inc. v. HuYangYang, Song Bin, D2010-1062 (WIPO Sep. 3, 2010). Therefore, the Panel finds that Respondent has developed a pattern of bad faith registration and use, which allows Respondent to infer bad faith in the present dispute pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Complainant next alleges that Respondent’s registration and use of the <quibds.com> domain name is disruptive to Complainant’s business. Complainant notes that Respondent is using the disputed domain name to bring Internet users to a website featuring products/services in direct competition with Complainant. Panels have found that resolving a disputed domain name to a website used in direct competition to the complainant demonstrates bad faith. See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Therefore, the Panel finds that Respondent registered and is using the <quibds.com> domain name disruptively and in bad faith under Policy ¶ 4(b)(iii).
Complainant contends that the <quibds.com> domain name resolves to a website run by a competitor of Complainant. Complainant states that Respondent presumably profits from immediately redirecting Internet users to the resolving website. According to Complainant, a likelihood of confusion with Complainant’s mark and the <quibds.com> domain name exists and Respondent uses it to commercially benefit. Therefore, the Panel finds that Respondent registered and uses the <quibds.com> domain name in order to take commercial advantage of Internet users’ mistakes as to the source, sponsorship, or affiliation of the <quibds.com> domain name under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).
Lastly, Complainant argues that Respondent has engaged in a classic example of typosquatting. Complainant notes that the second-level portion of the disputed domain name only differs from the QUIBIDS mark by a single letter, and Complainant argues that the <quibds.com> domain name is designed to take advantage of Internet users’ typographical errors. The panel in Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005), held that using minor misspellings of a mark as domain names takes advantage of mistypings and thus is an example of typosquatting. Therefore, the Panel finds that Respondent registered and uses the <quibds.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <quibds.com> domain name be TRANSFERRED from Respondent to Complaint.
John J. Upchurch, Panelist
Dated: March 8, 2013
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