Zynga Inc. v. Gao Xiao Quan
Claim Number: FA1712001762510
Complainant is Zynga Inc. (“Complainant”), represented by Peter Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Gao Xiao Quan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <buyzyngachips.com>, registered with Alibaba Cloud Computing Ltd. D/B/A Hichina (Www.Net.Cn); Hichina Zhicheng Technology Limited.
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.
Charles A. Kuechenmeister
Complainant submitted a Complaint to the Forum electronically on December 12, 2017; the Forum received payment on December 12, 2017.
On Dec 14, 2017; Jan 04, 2018, Alibaba Cloud Computing Ltd. D/B/A Hichina (Www.Net.Cn); Hichina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <buyzyngachips.com> domain name (the “Domain Name”) is registered with Alibaba Cloud Computing Ltd. D/B/A Hichina (Www.Net.Cn); Hichina Zhicheng Technology Limited and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. D/B/A Hichina (Www.Net.Cn); Hichina Zhicheng Technology Limited has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. D/B/A Hichina (Www.Net.Cn); Hichina Zhicheng Technology Limited 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 15, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 5, 2018 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@buyzyngachips.com. Also on January 15, 2018, 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 February 7, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 Name be transferred from Respondent to Complainant.
PRELIMINARY ISSUES
Language of Proceedings
The Registration Agreement is written in Chinese. Under Rule 11(a), the language of the proceedings is the language of that agreement, subject to the authority of the Panel to determine otherwise, having due regard for the circumstances of the case.
In this case, Complainant alleges that Respondent is conversant and proficient in English, and that the proceeding should therefore be conducted in English. In support, Complainant notes that the Domain Name itself is an English phrase, “Buy Zynga chips,” the content on the resolving website is exclusively in English, including the “contact us” page, and the gTLD is “.com,” which is primarily targeted to English-speaking internet users. See, Complaint, Annex J. The Panel has discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English).
Based upon the foregoing evidence presented by Complainant, the Panel finds that the Respondent is conversant and proficient in the English language. After considering the circumstances of the present case, and pursuant to UDRP Rule 11(a), the Panel decides that the proceeding will proceed in the English language.
Respondent Offer to Transfer
The Forum was copied on email correspondence between Respondent and Complainant, and received additional correspondence from Respondent, and submitted these messages to the Panel. In a number of these emails Respondent expressed a willingness to transfer the Domain Name to Complainant. See, e.g., email dated December 28, 2017 (“I am happy to transfer the relevant domain names [sic] to them for free”). These messages appear to be authentic. The Panel is under no obligation to consider any of them, but as required by Policy ¶ 8(a), upon notice of the commencement of this proceeding, the registrar, Alibaba Cloud Computing Ltd. D/B/A Hichina (Www.Net.Cn); Hichina Zhicheng Technology Limited, placed a hold on Respondent’s account. Respondent therefore cannot transfer the Domain Name while this proceeding is still pending. Under these circumstances, where Respondent does not contest the transfer of the Domain Name but instead agrees to transfer it to Complainant, the Panel may forego the traditional UDRP analysis and order an immediate transfer of the Domain Name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 ( Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names”). This Panel elects to adopt this approach and will order the transfer of the Domain Name without a UDRP analysis.
Upon the offer of Respondent to transfer the Domain Name to Complainant, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <buyzyngachips.com> domain name be TRANSFERRED to Complainant.
Charles A. Kuechenmeister, Panelist
Dated: February 9, 2018
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