Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO
Claim Number: FA1706001734926
Complainant is Ripple Labs Inc. (“Complainant”), represented by Rachel Jacques of Maschoff Brennan, Utah, USA. Respondent is NGYEN NGOC PHUONG THAO (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ripplenetwork.net>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 7, 2017; the Forum received payment on June 7, 2017.
On June 8, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ripplenetwork.net> 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 June 8, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2017 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@ripplenetwork.net. Also on June 8, 2017, 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 July 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, doing business under the RIPPLE mark, markets computer programs for trading traditional currency and virtual currency electronically.
Complainant holds a registration for the service mark RIPPLE, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,453,543, registered December 24, 2013.
Respondent registered the domain name <ripplenetwork.net> on March 1, 2017.
The domain name is confusingly similar to Complainant’s RIPPLE mark.
Respondent does not have rights to or legitimate interests in the domain name.
Respondent has not been commonly known by the domain name.
Complainant has not granted Respondent a license or other permission to use the RIPPLE mark for any purpose.
Respondent is not using the domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use.
Rather, Respondent uses the domain name to trade upon the goodwill and public recognition of the RIPPLE mark so as to confuse Internet users into believing that some affiliation exists between Respondent and Complainant.
Currently the domain name resolves to an inactive website that prominently displays Complainant’s RIPPLE mark in an attempt by Respondent to pass itself off as Complainant.
Respondent knew of Complainant and its rights in the RIPPLE mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name was registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the RIPPLE service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum August 4, 2015) (finding that a UDRP complainant’s USPTO registrations for its mark sufficiently demonstrated its rights in the mark under Policy ¶ 4(a)(i)).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Vietnam). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <ripplenetwork.net> domain name is confusingly similar to Complainant’s RIPPLE mark. The domain name contains the mark in its entirety, merely appending the generic term “network,” which is descriptive of an aspect of Complainant’s business, together with the generic Top Level Domain (“gTLD”) “.net.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that the affixation of a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
See also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum January 21, 2016) (finding confusing similarity under Policy ¶ 4(a)(i) where a disputed domain name contained a UDRP complainant’s entire mark and differed only by the addition of a generic phrase and top-level domain, those differences being insufficient to differentiate one from the other for purposes of the Policy).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <ripplenetwork.net> domain name, and that Complainant has not authorized Respondent to use the RIPPLE mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “NGYEN NGOC PHUONG THAO,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the purview of
Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. v. Song Bin, FA1408001574905 (Forum September 17, 2014) (finding that a respondent was not commonly known by a disputed domain name, and so failed to show that it had rights to or legitimate interests in it as provided in Policy ¶ 4(c)(ii), as demonstrated by the relevant WHOIS information and the fact that a UDRP complainant had not licensed or otherwise authorized that respondent to use its mark in a domain name.) Similarly, see Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name, and therefore lacked rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii), where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name registration).
We next observe that Complainant asserts, without objection from Respondent, that the challenged <ripplenetwork.net> domain name currently resolves to an inactive webpage. In the circumstances here obtaining, such inactive use of the domain name is neither a bona fide offering of goods and services by means of the domain name under Policy ¶ 4(c)(i), nor a legitimate non-commercial or fair use of it under Policy ¶ 4(c)(iii), so as to show that Respondent has acquired rights to or legitimate interests in the domain name as set out in those provisions of the Policy. See, for example, U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Forum April 9, 2007):
Respondent’s failure to associate content with its disputed domain name evinces a lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii).
Therefore, the Panel finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
It is plain from the evidence that Respondent knew of Complainant and its rights in the RIPPLE mark when it registered the <ripplenetwork.net> domain name. This stands as proof of Respondent’s bad faith in registering the domain name. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum April 10, 2006) (finding that, where the circumstances indicate that a respondent had actual knowledge of a UDRP complainant's mark when it registered a challenged domain name, a panel may find that the domain name was registered in bad faith). See also Yahoo! Inc. v. Butler, FA 744444 (Forum August 17, 2006) (finding bad faith registration of a domain name where a respondent was "well-aware of the complainant's … mark at the time of registration").
In addition, while the record indicates that Respondent has to date apparently made no active use of the <ripplenetwork.net> domain name, we are persuaded by the evidence that “it is not possible to conceive of any … plausible active use of the domain name by the Respondent that would not be illegitimate….” See Telstra Corp. Ltd. v Nuclear Marshmallows, D2000-0003 (WIPO February 18, 2000). Inactive use of the domain name in such circumstances is adequate to permit us to conclude, as we do, that Respondent has both registered and now uses the domain name in bad faith within the contemplation of Policy ¶ 4(a)(iii).
Telstra, supra.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <ripplenetwork.net> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 10, 2017
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