RingCentral, Inc. v. Lin yanxiao
Claim Number: FA1402001543485
Complainant is RingCentral, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Lin yanxiao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ringcentral.co>, registered with GoDaddy.com, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 12, 2014; the National Arbitration Forum received payment on February 12, 2014.
On February 13, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <ringcentral.co> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 February 13, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 5, 2014 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@ringcentral.co. Also on February 13, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 12, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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
a. Complainant is a private company originally founded in 1999 and headquartered in San Mateo, California. Complainant offers virtual business phone systems to small and mid-sized businesses and has customers worldwide.
b. Since 1994, Complainant has continuously used the mark RINGCENTRAL for the operation and management of telephone communication, facsimile, voicemail, call processing, and call waiting and internet telephony (“VoIP”) services.
c. Complainant holds United States Patent and Trademark Office (“USPTO”) registrations for the RINGCENTRAL (e.g., Reg. No. 3,302,115 registered October 2, 2007), RINGCENTRAL FAX (Reg. No. 3,860,657 registered October 12, 2010), and RINGCENTRAL MOBILE (Reg. No. 3,887,697 registered December 7, 2010) marks.
d. The <ringcentral.co> domain name is confusingly similar to Complainant’s RINGCENTRAL mark.
e. Respondent has not been commonly known by the <ringcentral.co> domain name.
f. The WHOIS information suggests Respondent is known as an entity other than the trademark associated with Complainant.
g. Complainant has not licensed, authorized, or permitted Respondent to register domain names incorporating Complainant’s RINGCENTRAL mark.
h. Respondent is not sponsored by or legitimately affiliated with Complainant in any way.
i. Respondent has listed the <ringcentral.co> domain name for sale.
j. Respondent has engaged in an ongoing pattern of bad faith registration, as demonstrated by searches through the NAF and WIPO UDRP decision databases.
k. Respondent’s advertised pay-per-click links displayed on its website promote products that compete with Complainant. These links therefore divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business in bad faith under Policy ¶ 4(b)(iii).
l. Respondent has registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by using the domain to attract and mislead consumers for Respondent’s own profit.
m. Respondent's typosquatting behavior is, in and of itself, evidence of bad faith.
n. Respondent registered <ringcentral.co> on January 27, 2013.
B. Respondent
Respondent failed to submit a response in this proceeding.
Complainant holds trademark rights for the RINGCENTRAL mark. Respondent’s domain name is confusingly similar to Complainant’s RINGCENTRAL mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <ringcentral.co>domain name, and that Respondent registered and uses the 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 is a private company originally founded in 1999 and headquartered in San Mateo, California. Complainant offers virtual business phone systems to small and mid-sized businesses and has customers worldwide. The evidence indicates that Complainant has continuously used the mark RINGCENTRAL for the operation and management of telephone communication, facsimile, voicemail, call processing, and call waiting and Voice over Internet Protocol (“VoIP”) services since 1994. Complainant also has presented evidence of its USPTO registrations for the RINGCENTRAL (e.g., Reg. No. 3,302,115 registered October 2, 2007), RINGCENTRAL FAX (Reg. No. 3,860,657 registered October 12, 2010), and RINGCENTRAL MOBILE (Reg. No. 3,887,697 registered December 7, 2010) marks. The Panel determines that Complainant has established rights in the RINGCENTRAL, RINGCENTRAL FAX, and RINGCENTRAL MOBILE marks for the purposes of Policy ¶ 4(a)(i), regardless of the fact that Respondent appears to reside outside of the United States. See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (holding that the complainant’s trademark registrations with the USPTO had established rights in the BLOOMBERG mark); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant contends that Respondent’s <ringcentral.co> domain name is confusingly similar to Complainant’s RINGCENTRAL mark. First, Respondent merely adds the ccTLD “.co” to Complainant’s mark in forming the disputed domain name. The addition of a ccTLD is insufficient to distinguish the domain from Complainant’s mark. See Audigier Brand Mgmt. Grp., LLC v. bai wentao, FA 1286108 (Nat. Arb. Forum Nov. 16, 2009) (holding that even after the “addition of a ccTLD the disputed domain name is still identical to Complainant’s mark.”). The Panel consequently holds that Respondent’s <ringcentral.co> domain name is identical to Complainant’s RINGCENTRAL mark according to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
The evidence shows the following. Respondent has not been commonly known by the <ringcentral.co> domain name. Complainant has not licensed, authorized, or permitted Respondent to register domain names incorporating Complainant’s RINGCENTRAL mark, nor is Respondent sponsored by or legitimately affiliated with Complainant in any way. The WHOIS information in the record identifies Respondent as “Lin yanxiao,” which the Panel finds bears little similarity to <ringcentral.co>. The panel in IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) found that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name because the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it was commonly known by the domain name. As Respondent in the instant case has similarly failed to provide any evidence with respect to Policy ¶ 4(c)(ii), or any aspect of the Policy for that matter, the Panel concludes that Respondent is not commonly known by the <ringcentral.co> domain name for the purposes of Policy ¶ 4(c)(ii).
Complainant alleges that Respondent uses the <ringcentral.co> domain name to host a website featuring pay-per-click links which promotes products that compete with Complainant (e.g., “SMARTFAX – ONLINE FAXING” and “FAX WITHOUT A FAX MACHINE”). The use of a domain name for the sole purpose of displaying competing commercial links comports with neither Policy ¶ 4(c)(i) nor Policy ¶ 4(c)(iii). See, e.g., ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). The Panel accordingly determines that Respondent has not used the <ringcentral.co> domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant urges that Respondent has registered and uses the <ringcentral.co> domain name in bad faith. First, Complainant contends that Respondent has listed <ringcentral.co> for sale, demonstrating bad faith under Policy ¶ 4(b)(i) (“The owner of the domain you are researching has it listed for sale $2,888.”). In Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), the panel opined that a respondent's general offer of a disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i). The Panel agrees.
Complainant next contends that Respondent has engaged in an ongoing pattern of bad faith registration. E.g., Intesa Sanpaolo S.p.A. v. Yanxiao Lin, D2013-0035 (WIPO Dec. 26, 2013); see also ER Marks, Inc. and QVC, Inc. v. Lin Yanxiao, FA 1430698 (Nat. Arb. Forum Apr. 13, 2012); Sallie Mae, Inc. v. Whois Agent/ linyanxiao, D2013-1170 (WIPO Aug. 26, 2013). The existence of such conduct constitutes bad faith under 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). The Panel finds that Respondent registered the <ringcentral.co> domain name in bad faith according to Policy ¶ 4(b)(ii).
Complainant also contends that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii). Complainant asserts that Respondent’s advertised pay-per-click links displayed on its website promote products that compete with Complainant, arguing that these links therefore divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. Because these links appear to be sufficiently competitive compared to Complainant’s business, the Panel holds that it is reasonable to infer that Respondent’s registration and use of the <ringcentral.co> domain name disrupts Complainant’s business and is therefore a violation of Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant further contends that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by using the domain to attract and mislead consumers for Respondent’s own profit. Complainant states that Respondent intentionally choose a domain name identical to Complainant’s RINGCENTRAL mark in order to draw additional traffic to Respondent’s website, enabling Respondent to generate a greater economic gain from the commercial links displayed there. Such conduct has been found to constitute Policy ¶ 4(b)(iv) bad faith. See, e.g., Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). Consequently, the Panel finds that Respondent registered and uses the <ringcentral.co> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
The Panel finds Complainant has satisfied 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 <ringcentral.co> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 20, 2014
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