DECISION

 

United States Postal Service v. Yongkun Wang

Claim Number: FA1805001788170

PARTIES

Complainant is United States Postal Service (“Complainant”), represented by Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP, Arizona, USA.  Respondent is Yongkun Wang (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <usps.site>, <usps.group>, <usps.tech> and <usps.ink>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on May 23, 2018; the Forum received payment on May 23, 2018. The Complaint was received in both Chinese and English.

 

On May 24, 2018, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <usps.site>, <usps.group>, <usps.tech> and <usps.ink> domain names are registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the names. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 4, 2018, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of June 25, 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@usps.site, postmaster@usps.group, postmaster@usps.tech, postmaster@usps.ink.  Also on June 4, 2018, the Chinese language Written Notice of the Complaint, notifying Respondent of the Chinese language 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 June 28, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

Panel Note:  Language of the Proceedings

 

Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.

 

PARTIES' CONTENTIONS

A.   Complainant:

1.    Complainant, United States Postal Service uses the USPS mark in connection with its products and services. Complainant claims rights in the USPS mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,423,574 registered on Jan. 23, 2001). See Amend. Compl. Ex. 5. Respondent’s <usps.site>, <usps.group>, <usps.tech>, and <usps.ink> domain names are identical and/or confusingly similar to Complainant’s USPS mark as each name consists of the mark in its entirety with the added “.site,” “.group,” “.tech,” or “.ink” generic top-level domain (“gTLD”).

2.    Respondent has no rights or legitimate interests in the <usps.site>, <usps.group>, <usps.tech>, and <usps.ink> domain names. Respondent is not permitted or licensed to use Complainant’s USPS mark and is not commonly known by the disputed domain names. Additionally, Respondent is not using the disputed domain names to make a bona fide offering of goods or services or a legitimate non-commercial or fair use. Rather, Respondent is using the disputed domain names to host pay-per-click links. In addition Respondent’s uses the domain names are being used to infect users with malware or to phish for users’ personal information.

3.    Respondent has registered and is using the <usps.site>, <usps.group>, <usps.tech>, and <usps.ink> domain names in bad faith. Respondent offers the <usps.group> and <usps.tech> domain names for sale. In addition, Respondent demonstrates a pattern of bad faith registration and use. Further, Respondent attempts to disrupt Complainant’s business. Moreover, Respondent attempts to download malware to fraudulently phish for personal information. Finally, Respondent registered the <usps.site>, <usps.group>, <usps.tech>, and <usps.ink> domain names with actual knowledge of Complainant’s rights in the USPS mark prior to registration.

 

B.   Respondent:

1.    Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.    Respondent’s <usps.site>, <usps.group>, <usps.tech>, <usps.ink> domain names are confusingly similar to Complainant’s USPS mark.

2.    Respondent does not have any rights or legitimate interests in the <usps.site>, <usps.group>, <usps.tech>, <usps.ink> domain names.

3.    Respondent registered or used the <usps.site>, <usps.group>, <usps.tech>, <usps.ink> domain names in bad faith.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

Complainant claims rights in the USPS mark based upon its registration with the USPTO. Registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides a copy of its USPTO registration for the USPS mark (e.g., Reg. No. 2,423,574 registered on Jan. 23, 2001). See Amend. Compl. Ex. 5. Therefore, the Panel finds that Complainant has rights in the USPS mark per Policy ¶ 4(a)(i).

 

Next, Complainant asserts that the <usps.site>, <usps.group>, <usps.tech>, and <usps.ink> domain names are identical and/or confusingly similar to the USPS mark as Respondent merely adds a gTLD to the mark to form each domain name. Adding a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Complainant argues Respondent simply adds the one of the following gTLD’s to Complainant’s USPS mark: “site”, “group”, “tech” or “ink”. The Panel agrees with Complainant and finds that the disputed domain names do not contain changes that would sufficiently distinguish them from the USPS mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant asserts Respondent has no rights or legitimate interests in the <usps.site>, <usps.group>, <usps.tech>, or <usps.ink> domain names. Complainant argues Respondent is not authorized or licensed to use Complainant’s USPS mark and is not commonly known by the disputed domain names. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(iii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The relevant WHOIS information identifies the registrant of the names as “Yongkun Wang” See Amend. Compl. Ex. 2. Therefore, the Panel finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the disputed domain names.

 

Complainant claims that Respondent uses a fast flux DNS (“FFDNS”) technique to automatically redirect Internet users attempting to access the domain names to a series of rotating third party websites. Use of FFDNS with a domain name to redirect Internet users is not a use indicative of rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See MoneyGram International, Inc. v. Domain Admin / Whois Privacy Corp., FA1698585 (Forum, Nov. 28, 2016) (“Where a domain name redirects Internet users to a rotating series of webpages, such use does not demonstrate rights or legitimate interests within the meaning of the

Policy.”); see also Harry Winston, Inc. v. Domain Admin / Whois Privacy Corp., FA 1749276 (Forum, Oct, 18, 2017) (holding that use of a domain name to redirect Internet users to a rotating series of third-party websites, some of which attempt to install malware on users’ computers, does not show the respondent has rights or legitimate interests in the domain name). Complainant includes screenshots of the resolving webpages from the domain names, which appear to resolve to various, ever-changing webpages, some of which seek to defraud consumers, support phishing schemes, and/or produce affiliate revenue for Respondent by forwarding users to third-party websites. See Compl. Ex. 3. The Panel determines Respondent’s lacks of rights and legitimate interests in the domain names is indicated by its use of the names as part of an FFDNS redirection scheme.

 

Additionally, Complainant argues Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant claims Respondent is using the <usps.site>, <usps.group>, <usps.tech>, and <usps.ink> domain names to resolve to parked pages that host pay-per-click links. Using a confusingly similar domain name to display pay-per-click links is further evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Here, Complainant provides screenshots of the websites resolving from Respondent’s disputed domain names, which redirect users to a rotating series of third-party websites. See Amend. Compl. Ex. 3. Some of these websites display a list of third-party links. Id. Therefore, the Panel finds that the Respondent lacks rights or legitimate interests with respect to the disputed domain names pursuant to Policy ¶¶ 4(c)(i) and (iii).

 

In addition, Respondent links users visiting its domain names to webpages which attempt to download malware on Internet users’ computers or to operate phishing schemes. Use of malicious software or phishing for users’ personal information does not constitute a bona fide offering or a legitimate use per Policy ¶¶ 4(c)(i) or (iii). See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy 4(c)(i) & (iii).”); see also Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). Here, Complainant contends that screenshots of the disputed domain names demonstrate that the pop-up on the website provides that the visitor’s computer is infected with “pornographic spyware” and instructs the visitor to contact a toll free number in order to remove the spyware. See Amend. Compl. Ex. 3. The record supports Complainant’s claims the Respondent seeks to defraud consumers through the sale of fraudulent tech support services and by obtaining the personally identifiable information of consumers. Therefore, the Panel finds that the Respondent lacks rights or legitimate interests with respect to the disputed domain names pursuant to Policy ¶¶ 4(c)(i) and (iii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and is using the disputed domain names in bad faith. Specifically, Complainant alleges that Respondent attempts to sell the <usps.group> and <usps.tech> domain names. Offering a domain name for sale for far more than its estimated out-of-pocket costs incurred in initially registering the disputed domain name is evidence of bad faith per Policy ¶ 4(b)(i), See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Complainant contends that Respondent offered to sell the <usps.group> and <usps.tech> domain names for “Cheaper than arbitration costs.” See Amend. Compl. Ex. 3. Complainant further argues the offer to sell these domain names for “cheaper than arbitration costs” indicates Respondent was aware it had purchased domains likely to be subject to UDRP proceedings, and that it intended to sell the domain names for valuable consideration in excess of Respondent’s out-of-pocket costs. Therefore, the Panel finds that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(i).

                  

Next, Complainant argues that Respondent has engaged in a pattern of bad faith registration and use. A respondent’s registration of multiple domain names incorporating variants of the complainant’s mark may reflect a pattern of bad faith registration under Policy ¶ 4(b)(ii). Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1309001520008 (Forum Nov. 7, 2013) (finding that the respondent’s registration of multiple infringing domain names indicates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii)). Here, Complainant contends that Respondent is a serial cybersquatter as evidenced by its registering four separate domain names all incorporating Complainant’s USPS mark. Therefore, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(ii).

 

In addition, Complainant contends that Respondent uses the disputed domain names to disrupt Complainant’s business by redirecting internet users seeking Complainant’s business to a parked page that hosts and pay-per-click links. Use of a domain name to host a website that contains pay-per-click links which disrupt a complainant’s business may be evidence of bad faith under Policy ¶ 4(b)(iii). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy

¶ 4(b)(iii)”). Here, Complaint provides screenshots showing the pages resolved to by the disputed domain names which display pay-per-click links. See Amend. Compl. Ex. 3. Therefore, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii).

 

Complainant further alleges that Respondent registered and is using the <usps.site>, <usps.group>, <usps.tech>, and <usps.ink> domain names in bad faith because Respondent uses the disputed domain names to conduct a phishing scheme. A respondent’s apparent use of a domain name in furtherance of a ‘phishing’ scheme further establishes bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Here, Complainant provides screenshots of some pages resolved to by the domain names which appear to demonstrate a pop-up message from the website telling the visitor that its computer is infected with “pornographic spyware” and instructs the visitor to contact a toll free number in order to remove the spyware. See Amend. Compl. Ex. 3. Complainant claims the scam seeks to defraud consumers through the sale of fraudulent tech support services and by obtaining the personally identifiable information of consumers. Therefore, the Panel finds that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii).

 

Finally, Complainant argues that Respondent registered the disputed domain names with actual knowledge of Complainant’s mark.  Actual knowledge may be proven through a totality of circumstances surrounding the registration of the disputed domain name.  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 asserts that given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety indicates that Respondent had actual knowledge of Complainant’s mark. The Panel agrees that Respondent had actual knowledge of Complainant’s rights in the USPS mark when it registered and subsequently used the <usps.site>, <usps.group>, <usps.tech>, and <usps.ink> domain names thereby supporting a finding of bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <usps.site>, <usps.group>, <usps.tech> and <usps.ink> domain names be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

Dated:  July 11, 2018

 

 

 

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