Twitter, Inc. v. duan xiang wang
Claim Number: FA1609001695021
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is duan xiang wang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <ltwitter.com>, <nwitter.com>, <tawitter.com>, <teitter.com>, <trwitter.com>, <tweetdec.com>, <twilter.com>, <twitere.com>, <twitterr.com>, <twittrr.com>, <twiutter.com>, and <twttier.com>, registered with eName 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 22, 2016; the Forum received payment on September 22, 2016.
On September 25, 2016, eName Technology Co., Ltd. confirmed by e-mail to the Forum that the <ltwitter.com>, <nwitter.com>, <tawitter.com>, <teitter.com>, <trwitter.com>, <tweetdec.com>, <twilter.com>, <twitere.com>, <twitterr.com>, <twittrr.com>, <twiutter.com>, and <twttier.com> domain names are registered with eName Technology Co., Ltd. and that Respondent is the current registrant of the names. eName Technology Co., Ltd. has verified that Respondent is bound by the eName 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 September 26, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 17, 2016 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@ltwitter.com, postmaster@nwitter.com, postmaster@tawitter.com, postmaster@teitter.com, postmaster@trwitter.com, postmaster@tweetdec.com, postmaster@twilter.com, postmaster@twitere.com, postmaster@twitterr.com, postmaster@twittrr.com, postmaster@twiutter.com, and postmaster@twttier.com. Also on September 26, 2016, 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 October 24, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant operates a real-time global information network that allows the public to discover what’s happening in the world, share information, and connect to anyone, anywhere in real time. Complainant has branded its offerings with the TWITTER mark and the TWEETDECK mark. The TWITTER and TWEETDECK marks are registered with the United States Patent and Trademark Office (“USPTO”) (TWITTER—Reg. No. 3,619,911, first use Aug. 31, 2006, filed Apr. 26, 2007, registered May 12, 2009; TWEETDECK—Reg. No. 4,110,588, filed Apr. 30, 2009, registered Mar. 13, 2012). See Compl., at Attached Ex. E. Complainant has rights in the TWITTER mark that date back to March 11, 2007 because that was the date Complainant was awarded the prestigious SXSW Web Award at the landmark 2007 SXSW Interactive Conference. See Compl., at Attached Ex. C. The disputed domain names are confusingly similar to the TWITTER and TWEETDECK marks. The <tweetdec.com> is confusingly similar to the TWEETDECK mark because it incorporates the mark entirely and eliminates the “K” and adds the generic top-level domain (“gTLD”) “.com.” The remaining domain names are variations of the TWITTER mark by either adding a single letter (<ltwitter.com>, <tawitter.com>, <trwitter.com>, <twitterr.com>, <twiutter.com>), transposing a single letter (<twttier.com>), or deleting one letter and adding another (<twitere.com>, <nwitter.com>, <teitter.com>, <twilter.com>, <twittrr.com>).
Respondent has no rights or legitimate interests in the disputed domain names. The WHOIS identifies Respondent as “duan xiang wang.” See Compl., at Attached Ex. A. Therefore, Respondent is not commonly known by the disputed domain names. In addition, Respondent has not operated with any bona fide offering of goods or services or any legitimate noncommercial or fair use. Rather, the disputed domains are redirected to (a) <facebook.com> (<ltwitter.com>; <tawitter.com>; <twitterr.com>; <twittrr.com>; <twiutter.com>) (see Compl., at Attached Ex. F); (b) malware warnings and downloads (<teitter.com>; <twitere.com>; <twttier.com>) (see Compl., at Attached Ex. G); (c) pay-per-click sites featuring misleading links such as “Twitter Login,” “Twitter Sign In” and “Download Tweetdeck” which lead to unauthorized third party websites (<tweetdec.com>; <nwitter.com>) (see Compl., at Attached Ex. H); and (d) a third party web portal <lvse.com> (<trwitter.com>) (see Compl., at Attached Ex. I). The remaining <twilter.com> is inactive despite being registered in 2008. See Compl., at Attached Ex. K. <tweetdec.com> is also being offered for sale. See Compl., at Attached Ex. J.
Respondent registered and used the disputed domain names in bad faith. First, Respondent’s general offer to sell <tweetdec.com> is Policy ¶ 4(b)(i) bad faith. Id. Second, due to the number of confusingly similar domain names involved in this dispute, and Respondent’s previous history of bad faith findings against it in UDRP proceedings, Policy ¶ 4(b)(ii) pattern of bad faith is present. See Compl., at Attached Ex. L. Third, the diversion to Facebook, an alternative/competing social network platform, constitutes disruption per Policy ¶ 4(b)(iii). Fourth, the provision of links to third-party websites are presumably linked with the collection of referral fees by Respondent, and constitutes bad faith under Policy ¶ 4(b)(iv). Fifth, Respondent has caused some of the domain names to distribute malware or issue fake malware warnings—further evidence of bad faith under Policy ¶ 4(b)(iv). Sixth, Respondent had actual knowledge of Complainant’s marks and its rights in the marks, which is nonexclusive evidence of bad faith under Policy ¶ 4(a)(iii). Seventh, under a further nonexclusive analysis, Respondent has typosquatted each domain name by incorporating minor misspellings. Eighth, and specifically to <twilter.com>, Respondent has inactively held the domain name for over seven years—this failure to make any use of the domain name indicates bad faith under Policy ¶ 4(a)(iii). Ninth and last, Respondent registered <teitter.com> with opportunistic bad faith because the registration was within hours of the SXSW event and associated press on March 11, 2007.
B. Respondent
Respondent failed to submit a Response in this proceeding. The domain names were registered on the following dates:
<ltwitter.com> March 19, 2010;
<nwitter.com> June 25, 2011;
<tawitter.com> March 23, 2009;
<teitter.com> March 11, 2007;
<trwitter.com> August 28, 2007;
<tweetdec.com> September 2, 2010;
<twilter.com> January 5, 2008;
<twitere.com> September 13, 2009;
<twitterr.com> July 4, 2009;
<twittrr.com> May 21, 2008;
<twiutter.com> January 13, 2009; and
<twttier.com> February 16, 2009.
The Panel finds that each of the disputed domain names is confusingly similar to Complainant’s valid and subsisting trademarks; that Respondent has no rights or legitimate interests in or to the disputed domain names; and that Respondent engaged in bad faith and/or opportunistic bad faith regarding each and every disputed domain name.
Pursuant to UDRP Rule 11(a), the Panel further finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that 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.
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 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 (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.”).
The Panel finds that each of the disputed domain names is confusingly similar to Complainant’s valid and subsisting trademarks TWITTER and/or TWEETDECK. Complainant has adequately plead its interests in or to these trademarks. Complainant has rights in the TWITTER mark that date back to March 11, 2007 because that was the date Complainant was awarded the prestigious SXSW Web Award at the landmark 2007 SXSW Interactive Conference. See Compl., at Attached Ex. C.
The disputed domain names are confusingly similar to the TWITTER and TWEETDECK marks. The <tweetdec.com> disputed domain name is confusingly similar to the TWEETDECK mark because it incorporates the mark entirely and eliminates the “K” and adds the generic top-level domain (“gTLD”) “.com.” The remaining domain names are variations of the TWITTER mark by either adding a single letter (<ltwitter.com>, <tawitter.com>, <trwitter.com>, <twitterr.com>, <twiutter.com>), transposing a single letter (<twttier.com>), or deleting one letter and adding another (<twitere.com>, <nwitter.com>, <teitter.com>, <twilter.com>, <twittrr.com>).
As such, the Panel finds that each and every one of the disputed domain names is confusingly similar to Complainant’s trademarks.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain names. The WHOIS information identifies Respondent as “duan xiang wang.” See Compl., at Attached Ex. A. As Respondent has not submitted an answer to the Complaint, there is no evidence in the record to indicate that it is commonly known by any of the disputed domain names.
Therefore, the Panel finds Respondent is not commonly known by any of the disputed domain names.
In addition, the Panel finds that Respondent has not operated with any bona fide offering of goods or services or any legitimate noncommercial or fair use. Rather, the disputed domains are redirected to (a) <facebook.com> (<ltwitter.com>; <tawitter.com>; <twitterr.com>; <twittrr.com>; <twiutter.com>) (see Compl., at Attached Ex. F); (b) malware warnings and downloads (<teitter.com>; <twitere.com>; <twttier.com>) (see Compl., at Attached Ex. G); (c) pay-per-click sites featuring misleading links such as “Twitter Login,” “Twitter Sign In” and “Download Tweetdeck” which lead to unauthorized third party websites (<tweetdec.com>; <nwitter.com>) (see Compl., at Attached Ex. H); and (d) a third party web portal <lvse.com> (<trwitter.com>) (see Compl., at Attached Ex. I). Competing use, hyperlinks, and attempts to distribute malware establish a lack of any rights and legitimate interests. See Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (FORUM Aug. 10, 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 as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also Ceridian Corp. v. Versata Software, Inc., FA 1259927 (FORUM June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”).
As such, the Panel finds that Respondent has failed to establish any bona fide offering of goods or services or any legitimate noncommercial or fair use for the disputed domain names addressed in the above paragraph.
The remaining <twilter.com> is argued by Complainant to have been inactively held since 2008. See Compl., at Attached Ex. K (displaying, “This page can’t be displayed”). Inactive use of a domain name does not establish rights and legitimate interests. See Am. Online, Inc. v. Kloszewski, FA 204148 (FORUM Dec. 4, 2003) (“Respondent's [failure to make an active use] of the <aolfact.com> domain name for over six months is evidence that Respondent lacks rights and legitimate interests in the domain name.”). Since the domain name is alleged to have been inactive for over six months, as is the asserted threshold by the panel in Am. Online, Inc., the Panel finds that such inactive holding does not establish rights and legitimate interests in <twilter.com>.
Furthermore, <tweetdec.com> is also being offered for sale. See Compl., at Attached Ex. J. The WHOIS record for this disputed domain name displays the message “TweetDec.com is for sale!” with a link underneath that indicates “Buy TweetDec.com,” and the domain name is also listed for sale on <sedo.com>. Id. General offers for sale have been considered as an indication of no rights and legitimate interests. See Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (FORUM May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).”).
Therefore, the Panel finds that the general offers for sale outlined above, and included in the exhibits, are further evidence of a lack of rights and legitimate interests in <tweetdec.com>.
The Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain names. Complainant expertly lays out nine reasons why Respondent should be found to have engaged in bad faith use and registration. Although any one of these reasons may be enough to find such based faith, each will be addressed in order.
First, Complainant asserts that Respondent’s general offer to sell <tweetdec.com> is Policy ¶ 4(b)(i) bad faith. General offers to sell the disputed domain names that Complainant has included at Attached Exhibit J. In Staples, Inc. v. lin yanxiao, FA1505001617686 (FORUM June 4, 2015), the panel stated, “Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.” As Respondent in this case purportedly offers to sell <tweetdec.com> to the general public, the Panel finds that Respondent has registered and used the domain name in bad faith per Policy ¶ 4(b)(i).
Second, Complainant notes that due to the number of confusingly similar domain names involved in this dispute, and Respondent’s previous history of bad faith findings against it in UDRP proceedings, Policy ¶ 4(b)(ii) pattern of bad faith is present. See Compl., at Attached Ex. L. The email associated with the historical WHOIS information was also associated with the disputed domain names involved in the following proceedings: Microsoft Corp. v. Duan Xiang Wang, FA0906001269201 (FORUM Aug. 11, 2009) (finding that Respondent acted in bad faith in regard to the typo-squatted domain name <microsoftranslator.com>); Beta et Companie v. Duan Xiang Wang / Huang Kuan You, D2012-1153 (WIPO Aug. 31, 2012) (finding that Respondent acted in bad faith in regard to the domain name <viedemerde.com>). Multiple domains and past UDRP proceedings have been taken together to indicate bad faith. See H-D U.S.A., LLC v. zhangzongze / sweden / zhang jinxian / canada goose / harleydavidson / harley davidson, FA1410001587625 (FORUM Dec. 10, 2014) (“The Panel agrees that the case relates to the same Respondent here, and Respondent’s history of bad faith suggests Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii), especially given the presence of three domain names in this proceeding that incorporate the HARLEY-DAVIDSON mark.”). While Respondent has been involved in two prior UDRP proceedings (and found to have registered and used the domain names in bad faith), and while Respondent has twelve domain names involved in the instant dispute, the Panel finds that Respondent has demonstrated a pattern of bad faith pursuant to Policy ¶ 4(b)(ii).
Third, Complainant argues that the diversion to Facebook, an alternative/competing social network platform, constitutes disruption per Policy ¶ 4(b)(iii). The following domain names are alleged to compete with Complainant: <ltwitter.com>; <tawitter.com>; <twitterr.com>; <twittrr.com>; <twiutter.com>. See Compl., at Attached Ex. F (redirecting to Facebook). Redirecting to competitors has been found to be in bad faith under Policy ¶ 4(b)(iii). See Am. Online, Inc. v. Tapia, FA 328159 (FORUM Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site. The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). As such, the Panel finds that such redirection activity is evidence of Respondent’s bad faith use and registration.
Fourth, Complainant argues that the provision of links to third-party websites are presumably linked with the collection of referral fees by Respondent, and constitutes bad faith under Policy ¶ 4(b)(iv). In addition to the foregoing disputed domain names, the following disputed domain names are included: <tweetdec.com>; <nwitter.com> (see Compl., at Attached Ex. H (pay-per-click sites featuring misleading links such as “Twitter Login,” “Twitter Sign In” and “Download Tweetdeck” which lead to unauthorized third party websites)); and <trwitter.com> (see Compl., at Attached Ex. I (a third party web portal <lvse.com>)). Such use has been considered to be in bad faith per Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (FORUM June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). Accordingly, the Panel finds that Respondent has registered and used the disputed domain names in bad faith per Policy ¶ 4(b)(iv).
Fifth, Complainant argues that Respondent has caused some of the disputed domain names to distribute malware or issue fake malware warnings (<teitter.com>; <twitere.com>; <twttier.com>) (see Compl., at Attached Ex. G)—further evidence of bad faith under Policy ¶ 4(b)(iv). Malware is evidence of bad faith. See Google, Inc. v. Petrovich, FA 1339345 (FORUM Sept. 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)). Therefore, the Panel finds that Respondent registered and used the foregoing domain names in bad faith by incorporating malicious software.
Sixth, Complainant asserts that Respondent had actual knowledge of Complainant’s marks and its rights in the marks, which is nonexclusive evidence of bad faith under Policy ¶ 4(a)(iii). Panels look to a totality of the evidence in determining whether a respondent had actual knowledge. See Google Inc. v. Ahmed Humood, FA1411001591796 (FORUM Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”). Complainant argues that its marks are famous, that Respondent’s domain names seek to profit from the goodwill associated with the marks, and that the domains are so confusingly similar to Complainant’s marks that a finding of actual knowledge must follow. As such, the Panel finds that nonexclusive bad faith under Policy ¶ 4(a)(iii). The only exception to this finding may be that the disputed domain name <teitter.com> is not, in and by itself, as similar as the other disputed domain names; however, given the totality of the circumstances and the obvious pattern of bad faith use and registration that this Respondent has so adequately demonstrated, the Panel finds that even <teitter.com> was registered with full knowledge of Complainant’s prior interests in the TWITTER mark.
Seventh, under a further nonexclusive analysis, Complainant argues that Respondent has typosquatted each domain name by incorporating minor misspellings. See generally Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (FORUM July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Therefore, the Panel finds that the disputed domain names at issue are merely typosquatted variations of Complainant’s marks—bad faith use and registration under Policy ¶ 4(a)(iii).
Eighth, and specifically to <twilter.com>, Complainant argues that Respondent has inactively held the domain name for over seven years—this failure to make any use of the domain name indicates bad faith under Policy ¶ 4(a)(iii). In Pirelli & C. S.p.A. v. Tabriz, FA 921798 (FORUM Apr. 12, 2007), the panel held that non-use of a confusingly similar domain name for over seven months constitutes bad faith registration and use. While Respondent is alleged to have inactively held the domain name for seven years rather than merely seven months, the Panel finds that it is proper to find bad faith use and registration under Policy ¶ 4(a)(iii) regarding the <twilter.com> disputed domain name.
Ninth and last, Complainant argues that Respondent registered <teitter.com> with opportunistic bad faith because the registration was within hours of the SXSW event and associated press on March 11, 2007. Evidence of this media announcement can be found at Attached Exhibit C. Panels have agreed that opportunistic bad faith exists where a respondent takes advantage of temporal proximity of an announcement by a complainant in media when registering and using a domain name. See Thermo Electron Corp. v. Xu, FA 713851 (FORUM July 12, 2006) (“If there had been any doubt as to bad faith, the fact that registration was on the same day the news leaked about the merger, which was put in evidence, is a compelling indication of bad faith that [the] respondent has to refute and which he has failed to do. The panel finds a negative inference from this.”); see also Amazon Technologies, Inc. v. harshit dhingaun, FA1505001619696 (FORUM June 10, 2015) (holding that the respondent had demonstrated opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the <amazonfashionindia.com> and <amazonindiafashion.com> domain names within days after the announcement of the complainant’s sponsorship of India Fashion Week). Accordingly, the Panel finds that Respondent’s registration of <teitter.com> on the same day that Complainant’s SXSW award was announced indicates opportunistic bad faith per Policy ¶ 4(a)(iii).
For the nine foregoing reasons above, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <ltwitter.com>, <nwitter.com>, <tawitter.com>, <teitter.com>, <trwitter.com>, <tweetdec.com>, <twilter.com>, <twitere.com>, <twitterr.com>, <twittrr.com>, <twiutter.com>, and <twttier.com> domain names transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: October 27, 2016
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