Cost Plus Management Services, Inc. v. xushuaiwei
Claim Number: FA1808001800036
Complainant is Cost Plus Management Services, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is xushuaiwei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <worldmaret.com> (the “Domain Name”), registered with 22net, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 3, 2018; the Forum received payment on August 3, 2018.
On August 5, 2018, 22net, Inc. confirmed by e-mail to the Forum that the <worldmaret.com> domain name is registered with 22net, Inc. and that Respondent is the current registrant of the name. 22net, Inc. has verified that Respondent is bound by the 22net, Inc. 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 August 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 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@worldmaret.com. Also on August 13, 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 September 6, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
A. Complainant
Complainant’s contentions can be summarised as follows:
The proceedings should proceed in English even though the registration agreement for the Domain Name is in Chinese. The Domain Name and the content attached to it are English and multiple UDRP decisions against Respondent have proceeded in English, because it was found Respondent was familiar with English.
Complainant is a retailer and the owner of the mark WORLD MARKET registered, inter alia, in the USA for retail services and a wide variety of products with first use recorded as 1992. It owns <worldmarket.com>.
The Domain Name registered in 2013 by Respondent is confusingly similar to Complainant’s trade mark differing from it by only one letter, the omission of a ‘k’ which is not sufficient to distinguish the Domain Name from Complainant’s trade mark under the Policy.
Respondent is not commonly known by the Domain Name or authorised by Complainant to use Complainant’s mark. Respondent has not answered Complainant’s cease and desist letter and has pointed the Domain Name to pay per click links from competing third party web sites which is not a bona fide offering of goods or services or a legitimate non commercial fair use. In fact it is bad faith registration and use disrupting Complainant’s business and causing confusion on the Internet under Policy ¶¶ 4(b)(iii) and (iv). The Domain Name has been offered for sale for a sum in excess of out of pocket costs of registration contrary to Policy ¶ 4(b)(i). Typosquatting is bad faith per se and shows Complainant’s knowledge of Respondent’s business as does the reference to Complainant’s business in the pay per click links. There have been several decisions against Respondent under the UDRP disclosing other bad faith domain name selling and typosquatting behavior as a pattern under Policy ¶ 4(b)(ii).
B. Respondent
Respondent failed to submit a Response in this proceeding
Complainant is a retailer and the owner of the mark WORLD MARKET registered, inter alia, in the USA for retail services and a wide variety of products with first use recorded as 1992. It owns <worldmarket.com>.
The Domain Name registered in 2013 by Respondent has been pointed to pay per click links that compete with Complainant and also reference Complainant itself. The Domain Name has been offered for sale.
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.”).
Preliminary Issue Language of Proceedings
Bearing in mind that the Domain Name and the content attached to it are English and multiple UDRP decisions against Respondent have proceeded in English because it was found Respondent was familiar with English, pursuant to UDRP Rule 11 (a) the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that Respondent is conversant and proficient in the English language and the Panel decides that he proceedings should be in English.
Identical or Confusingly Similar
The Domain Name consists of a misspelling of Complainant’s WORLD MARKET mark (registered, inter alia in the USA for retail services and a wide variety of products and used since at least 1992) omitting a ‘k’. Panels have found that registering a domain name that differs from the complainant’s trade mark by one letter does not distinguish a domain name from that mark. See Twitch Interactive, Inc. v Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding that <twitcch.tv> is confusingly similar to the TWITCH TV trade mark because the domain name consisted of a misspelling of the mark by merely adding the letter ‘c’).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which Complainant has rights.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 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).
The web site to which the Domain Name redirects offers links to goods in competition with those of Complainant as well as containing links to Complainant itself. It is commercial so cannot be a legitimate non commercial or fair use. It does not make it clear that there is no commercial connection with Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See McGuireWoods LLP v Mykhailo Loginov/Loginov Enterprises doo, FA1412001584837 (Forum Jan 22, 2015) (“The Panel finds Respondent’s use of the disputed domain names to feature parked hyperlinks containing links in competition with the Complainant .. is not a bona fide offering of goods or services pursuant to 4(c)(i) and it is not a legitimate non commercial or fair use pursuant to Policy 4(b)(iii)”).
Typosquatting is also an indication of a lack of rights and legitimate interests.
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to Complainant’s mark and use if for competing products in what appears on the face of it to be a typosquatting registration.
In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe the links on it are connected to or approved by Complainant as they offer competing products under a sign confusingly similar to Complainant’s mark as well as containing links related to Complainant itself. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site or products on it likely to disrupt the business of Complainant. See American Council on Education and GED Testing Service LLC v Anthony Williams, FA 1760954 (Forum Jan. 8, 2018) and Capital One Financial Corp DN Manager/Whois-Privacy.net Ltd, FA1504001615034 (Forum June 4, 2015).
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name which entirely incorporates a misspelling of a mark in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
It is also noted the Domain Name has been offered for sale See DIRECTTV, LLC v michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) and Respondent has been the subject of several adverse decisions under the UDRP showing a pattern of activity See Webster Financial Corporation and Webster Bank, National Association v Above.com Domain Privacy, FA 1209001464477 (Forum Nov 30, 2012).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Paras. 4(b)(i), (ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <worldmaret.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 7, 2018
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