Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO
Claim Number: FA1707001741737
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 <ripplecoinxrp.com>, which is 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 July 26, 2017; the Forum received payment on July 26, 2017.
On July 27, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ripplecoinxrp.com> 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 July 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 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@ripplecoinxrp.com. Also on July 28, 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 August 18, 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 operates under the RIPPLE and XRP marks in the marketing of computer programs and computer software for trading traditional currency and virtual currency electronically.
Complainant holds registrations for the RIPPLE and XRP marks, which are on file with the United States Patent and Trademark Office (“USPTO”) as (for RIPPLE: Registration No. 4,453,543, registered December 24, 2013, and for XRP: Registry No. 4,458,993, registered December 31, 2013).
Respondent registered the domain name <ripplecoinxrp.com> on or about January 11, 2017.
The domain name is confusingly similar to the combination of Complainant’s RIPPLE and XRP marks.
Respondent has not been commonly known by the domain name.
Complainant has not granted Respondent a license or other permission to use the RIPPLE or XRP marks 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 pass itself off as Complainant in an effort to trade upon the goodwill and recognition of the RIPPLE and XRP marks and to confuse consumers into believing that some affiliation exists between Respondent and Complainant.
Respondent uses the domain name to obtain commercial gain by offering services that compete with the business of Complainant.
Respondent does not have rights to or legitimate interests in the domain name.
Respondent knew of Complainant and its rights in the RIPPLE and XRP marks when it registered the domain name.
Respondent has 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 service marks 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been 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 and XRP service marks for purposes of Policy ¶ 4(a)(i) by reason of its registration of those marks with a national trademark authority, the United States Patent and Trademark Office (“USPTO”). See, for example, Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum August 4, 2015) (finding that a UDRP complainant’s USPTO registrations for the HAAS mark sufficiently demonstrated its rights in that 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 <ripplecoinxrp.com> is confusingly similar to a combination of Complainant’s RIPPLE and XRP marks. The domain name contains the marks in their entirety, appending only the descriptive term “coin,” which is descriptive of Complainant’s business, and the generic Top Level Domain (“gTLD”) “.com.” These alterations of the marks, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum January 21, 2016) (determining that confusing similarity existed where a disputed domain name contained a UDRP complainant’s entire mark and differed only by the addition of a generic or descriptive phrase and a generic Top Level Domain, the differences between the domain name and its contained trademark being insufficient to differentiate one from the other for purposes of the Policy). See also 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).
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 (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 (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 they are 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 <ripplecoinxrp.com> domain name, and that Complainant has not authorized Respondent to use the RIPPLE or XRP marks 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 challenged domain name so as to have acquired rights to or legitimate interests in it within the ambit 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 that domain name as provided in Policy ¶ 4(c)(ii), based on the relevant WHOIS information and the fact that a UDRP complainant had not licensed or otherwise authorized that respondent to use its ALASKA AIRLINES mark.) See also Navistar International Corp. v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name, and so fell outside the protection of Policy ¶ 4(c)(ii), where a UDRP complainant had not authorized that respondent to incorporate its NAVISTAR mark in a domain name registration).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <ripplecoinxrp.com> domain name to divert Internet users to Respondent’s website for commercial gain by confusing them into believing that some sort of affiliation exists between it and Complainant, and that Respondent uses the domain name thus to obtain commercial gain by offering services that compete with the business of Complainant. This employment of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum September 30, 2003):
Respondent’s … intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
See also Alcon, Inc. v. ARanked, FA 1306493 (Forum March 18, 2010):
The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Therefore, the Panel finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the contested <ripplecoinxrp.com> domain name, which we have found to be confusingly similar to a combination of Complainant’s RIPPLE or XRP marks, to attempt to profit commercially from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (ForumJanuary 8, 2003) (finding that a disputed domain name was registered and used in bad faith within the compass of Policy ¶ 4(b)(iv) where that respondent used the domain name to attract Internet users to its fraudulent website by using a UDRP complainant’s famous marks and likeness).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the RIPPLE and XRP marks when it registered the domain name <ripplecoinxrp.com>. This further demonstrates Respondent’s bad faith in registering the domain name. See, for example, Google Inc. v. Ahmed Humood, FA1411001591796 (Forum January 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 … mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with [the business of] Complainant.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
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 <ripplecoinxrp.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 21, 2017
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