DECISION

 

Quora, Inc. v. yi nan sun

Claim Number: FA2001001881109

 

PARTIES

Complainant is Quora, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, United States.  Respondent is yi nan sun (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <quorabots.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

James Bridgeman SC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on January 29, 2020; the Forum received payment on January 29, 2020.

 

On January 30, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <quorabots.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 February 4, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 24, 2020 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@quorabots.com.  Also on February 4, 2020, 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 28, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC  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 disputed domain name <quorabots.com> be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant asserts that it has rights in the QUORA service mark acquired through its ownership of its portfolio of service mark registrations described below and its extensive use of the mark in association with its information sharing and learning services.

 

Complainant submits that the disputed domain name is confusingly similar to its QUORA mark as it incorporates the entirety of Complainant’s mark with only the addition of the word “bots” and the gTLD <.com> extension and as such, is likely to confuse consumers by inferring a connection with Complainant.

 

Complainant submits that the addition of the generic or descriptive term “bots” in the disputed domain name does nothing to differentiate that domain name from Complainant or the services that Complainant offers under its QUORA mark, arguing that It is well established under the Policy that the addition of non-distinctive terms does not change the likelihood of confusion. See MySpace, Inc. v. Myspace Bot, FA0604000672161 (Forum May 19, 2006) (finding the term “bot” generic and therefore the domain <myspacebot.com> was not sufficiently distinguishable from the MYSPACE mark).

 

Complainant adds that the inclusion of the gTLD <.com> extension is a standard registration requirement and as such is disregarded when applying the first element confusing similarity test in Policy ¶ 4(a)(i).

 

Complainant submits that Respondent has no rights or legitimate interests in respect of the disputed domain name.

 

Complainant submits that nothing in Respondent’s WHOIS information or the record demonstrates that Respondent is commonly known by the disputed domain name or otherwise demonstrate a legitimate interest or right of Respondent in the QUORA mark.

 

Complainant submits that Respondent is not commonly known by the disputed domain name, but instead refers to himself as “yi nan sun”. Complainant adds that Respondent may be commonly known as “WhiteHatBox” because when Complainant contacted the registrant of the disputed domain name regarding the unauthorized and infringing use of the QUORA mark in the disputed domain name and associated website, it received a response via email from an email address using the domain <whitehatbox.com>. Complainant refers to copies of said correspondence on September 19, 2019 and October 3, 2019 which are annexed to the Complaint and further submits that the links on the website associated with the disputed domain name redirect users to a website at the <whitehatbox.com> address.

 

Complainant adds that Respondent cannot be commonly known by the disputed domain name because Complainant has not authorized Respondent to use its QUORA mark. Complainant further asserts that Respondent is not an authorized licensee, distributor, retailer or subsidiary of Complainant and has no legitimate affiliation with Complainant.  Previous panels have found a respondent to have no rights or legitimate interests under similar circumstances. See Navistar Int’l Corp. v. Rahmany, FA1620789 (Forum June 8, 2015) (finding that the respondent had no interest in the domain name where complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).

 

Complainant further submits that Respondent is not using, and has not used, the disputed domain name in connection with any bona fide offering of goods or services, nor has it made any legitimate noncommercial or fair use of the disputed domain name. Rather, the disputed domain name is being used to offer for sale software designed to circumvent the normal operation of Complainant’s QUORA Platform by allowing users to use bots to push answers to the top, post questions in bulk, and automate answers, all of which violate Complainant’s Acceptable Use Policy. See also MySpace, Inc. v. Myspace Bot, FA0604000672161 (Forum May 19, 2006) (finding no bona fide offering of goods or services nor a legitimate noncommercial fair use where respondent was selling software products that circumvented complainant’s security system and violated complainant’s website Terms and Conditions).

 

Complainant alleges that Respondent has registered and is using the disputed domain name in bad faith for commercial gain and in an attempt to benefit from the goodwill and reputation associated with Complainant’s QUORA mark.

 

Complainant argues that Respondent had at least constructive knowledge of Complainant’s QUORA mark because of Complainant’s trademark registrations listed below and adds that the content of the website to which the disputed domain name resolves includes repeated references to Complainant and use of Complainant’s stylized letter “Q” service mark which, also shows that Respondent had actual knowledge of the QUORA Mark, which is indicative of bad faith

 

Complainant submits that Respondent has intentionally attempted to attract Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s QUORA mark as to the source, affiliation, or endorsement of Respondent’s website. After seeing the QUORA mark in the disputed domain name with the addition of the generic or descriptive term “bots,” consumers will initially be confused as to the site’s association with or sponsorship by Complainant. Complainant argues that such “initial confusion is enough to demonstrate bad faith.” NCAA and March Madness Ath. Assoc., LLC v. Mark Halpern and Front & Center Ent’t, WIPO Case No. D2000-0700. See David Foox v. Kung Fox and Bill Hicks, WIPO Case No. D2008-0472 (“A substantial proportion of Internet users visiting the site will be doing so in the hope and expectation of reaching a site of (or authorized by) the trade mark owner. When they reach the site they may realize that they have been duped, but in any event the registrant’s objective of bringing them there will already have been achieved.”).

 

Complainant alleges that Respondent is relying on the goodwill of Complainant’s mark to disrupt the Complainant’s business and mislead consumers, in order to draw them to his website for his own pecuniary gain. It is highly likely that a consumer seeking Complainant’s page will be confused or misled as to the source or sponsorship. such actions demonstrate that respondent has registered and is using the disputed domain name in bad faith in violation of ICANN Policy ¶ 4(b)(iv).

 

Complainant submits that Respondent’s bad faith registration and use of the disputed domain name are also evidenced by the fact that the website associated with the disputed domain name offers for sale software designed to circumvent Complainant’s Quora Platform by using bots to push answers to the top, post questions in bulk, and automate answers on the Quora Platform, in violation of Complainant’s Acceptable Use Policy.

 

Complainant concludes that prior decisions against a respondent may be sufficient to show a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). Complainant has identified at least one Forum decision against Respondent. See Amazon Techs., Inc. v. yi nan sun, FA1810001810408 (Forum Oct. 31, 2018) (transferring the domain).

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns and operates an information sharing and learning services through its website located at <quora.com> and related mobile applications.

 

Complainant is the owner of a portfolio of trademark registrations for QUORA in countries around the world including the following federal registrations in the United States:

•           United States trademark QUORA, registration number  4,119,033 registered on March 27, 2012, for services in international class 45;

•           United States trademark QUORA, registration number  4,119,032, registered on March 27, 2012 for services in international class 38;

•           United States trademark QUORA, registration number 4,376,754 registered on July 30, 2013 for services in international class 35;

•           United States trademark QUORA, registration number 4,387,898 registered on August 20, 2013 for services in international class 9;

•           United States trademark QUORA, registration number 4,387,897, registered on August 20, 2013 for services in international Class 9;

•           United States trademark QUORA, registration number 4,463,622 registered on January 7, 2014 for services in international class 35;

•           United States trademark QUORA, registration number 5,019,003 registered on August 9, 2016 for services in international class 42;

•           United States trademark QUORA, registration number 5,691,195 registered on  March 5, 2019 for services in international class 42.

 

Complainant also owns trademark registrations for its stylized “Q” Mark around the world, including United States trademark registrations numbers 4,476,794, 4,387,896, 4,394,987 and 5,019,002.

 

The disputed domain name was created on April 22, 2019 and resolves to a website which in turn links to another website that offers software designed to circumvent the normal operation of Complainant’s QUORA Platform by allowing users to use bots to push answers to the top, post questions in bulk, and automate answers.

 

There is no information available about Respondent except for that which is provided in the Complaint, the Registrar’s WhoIs and the Registrar’s response to the Forum’s request for verification of the details of the registration of the disputed domain name in the course of this proceeding. The disputed domain name was registered using a proxy service which concealed the name of Respondent until it was disclosed to the Forum in the course of this proceeding.

 

The record shows that Complainant’s representative sent a cease and desist letter to Respondent on September 19, 2019 and a reminder on October 3, 2019. A response was received from an email address at <whitehatbox.com> simply stating: “The site will be closed soon.”

 

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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).

 

Identical and/or Confusingly Similar

Complainant has adduced convincing uncontested evidence that it has rights in the QUORA service mark acquired through its ownership of its portfolio of service mark registrations described below and its extensive use of the mark in association with its information sharing and learning services as described in its submission.

 

Having compared both, this Panel finds that the disputed domain name is confusingly similar to its QUORA mark. The disputed domain name incorporates Complainant’s mark in its entirety with only the addition of the descriptive word “bots” and the gTLD <.com> extension. Complainant’s service mark is the initial and only distinctive element of the disputed domain name, the word “bots” is descriptive term for a category of software programs, and in the circumstances of the present case the <.com> gTLD extension may be ignored. This Panel accepts Complainant’s submissions that, as such, the disputed domain name is likely to confuse consumers by misleadingly inferring a connection with Complainant.

 

This Panel finds that the disputed domain name is confusingly similar to the QUORA mark in which Complainant has rights. Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has made out a prima facie case that Respondent has no rights or legitimate interest in the disputed domain name. There is no evidence on the record to demonstrate that Respondent is  commonly known by the disputed domain name; Respondent’s name when disclosed in the course of this proceeding is different from the disputed domain name; Complainant has not authorized Respondent to use its QUORA mark; Respondent is not an authorized licensee, distributor, retailer or subsidiary of Complainant and has no legitimate affiliation with Complainant.

 

Complainant further alleges that Respondent is not using, and has not used, the disputed domain name in connection with any bona fide offering of goods or services, nor has Respondent made any legitimate noncommercial or fair use of the disputed domain name; the record shows that the disputed domain name is being used to offer for sale software designed to circumvent the normal operation of Complainant’s QUORA Platform by allowing users to use bots to push answers to the top, post questions in bulk, and automate answers, all of which violate Complainant’s Acceptable Use Policy.

 

In such circumstances, the burden of production shifts to Respondent to prove that it has rights or legitimate interests. As Respondent has failed to respond to the Complaint to discharge that burden, this Panel finds that on the balance of probabilities respondent has no rights or legitimate interests in the disputed domain name.

 

Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The disputed domain name is a combination of Complainant’s distinctive trademark and the word “bots” which in the context of this case refers to a software robot. On the evidence before this Panel, Respondent is using the disputed domain name to offer for sale such software which is designed to push answers to the top, post questions in bulk, and automate answers on the Quora Platform, in violation of Complainant’s Acceptable Use Policy.

 

The software offered by Respondent is therefore specifically targets Complainant’s platform. Complainant submits that such use is in breach of in breach of Complainant’s Acceptable Use Policy, but does not explain this allegation by refence to the specific conditions which are allegedly breached. Furthermore, it appears to this Panel that Respondent is not using to disputed domain name to access Complainant’s platform but rather is using the disputed domain name to sell software to facilitate third parties’ use on Complainant’s platform.

 

This Panel finds therefore that on the balance of probabilities the disputed domain name, which is confusingly similar to Complainant’s mark was chosen and registered with Complainant, its mark and services in mind, in order to take predatory advantage of Complainant’s reputation in the QUORA mark.

 

Internet users are led onwards to a website at a different address that offers software that purports to be devised by third parties to optimize use of Complainant’s website for their marketing. Such use may well be in breach of Complainant’s Acceptable Use Policy and as such Respondent is facilitating bad faith use by third Parties. This is not proven as Complainant has not specified the alleged breaches of its policy and may be an issue for another forum.

 

What is proven is that on the balance of probabilities, Respondent is using the disputed domain name to divert Internet traffic away from Complainant and is using Complainant’s QUORA service mark, goodwill and reputation and goodwill to facilitate the sale of software with which Complainant has no connection.

 

In such circumstances this Panel finds that on the balance of probabilities that Respondent has intentionally attempted to attract, for commercial gain, Internet users to his web site by creating a likelihood of an initial interest confusion with Complainant's mark to attract and divert Internet traffic to Respondent’s website.

 

This Panel finds therefore that the disputed domain name was registered and is being used in bad faith as Complainant has therefore succeeded in the third and final element of the test in Policy ¶ 4(a)(iii) it is entitled to succeed in its application for transfer of the disputed domain name.

 

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 <quorabots.com> domain name be TRANSFERRED from Respondent to Complainant.

 

______________________________

 

James Bridgeman SC

Panelist

Dated:  February 29, 2020

 

 

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