Coupang Corporation v. Danbi Noh
Claim Number: FA2004001893389
Complainant is Coupang Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Danbi Noh (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coupanq.com>, registered with GoDaddy.com, LLC.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 23, 2020; the Forum received payment on April 23, 2020.
On April 24, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <coupanq.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 April 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 14, 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@coupanq.com. Also on April 24, 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 May 18, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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, Coupang Corporation, is one of the largest and fastest-growing online retail shopping companies in the world. Complainant has rights in the trademark COUPANG based upon its use in commerce since 2010 and its registration of the mark with the United States Patent Office (“USPTO”) and the Korean Intellectual Property Office (“KIPO”) dating back to 2012. Respondent’s <coupanq.com> domain name, registered on March 18, 2020, is confusingly similar to Complainant’s mark as Respondent incorporates the entire COUPANG mark, merely replaces the letter “g” with the letter “q”, and appends the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <coupanq.com> domain name. Respondent is not licensed or authorized to use Complainant’s COUPANG mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the <coupanq.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent fails to make an active use of the disputed domain name.
Respondent registered and uses the disputed domain name in bad faith. Respondent fails to make an active use of the disputed domain name. Moreover, Respondent engages in typosquatting by replacing the letter “g” with the letter “q” in the COUPANG mark. Finally, Respondent had actual knowledge of Complainant’s COUPANG mark when it registered the <coupanq.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed 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:
(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”).
Complainant claims rights in the COUPANG mark based upon its registration with the KIPO and the USPTO. Registration with such government trademark agencies 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 has submitted into evidence copies of its registrations for the COUPANG mark. Therefore, the Panel finds that Complainant has rights in the COUPANG mark per Policy ¶ 4(a)(i).
Next, Complainant asserts that the <coupanq.com> domain name is confusingly similar to the COUPANG mark as it contains the mark in its entirety, merely replacing the letter “g” for the letter “q” and adding the “.com” gTLD. Misspelling of a complainant’s mark, either by adding or removing letters, and adding a gTLD may not sufficiently mitigate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”); see also 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). The Panel agrees with Complainant and finds that the <coupanq.com> domain name is confusingly similar to Complainant’s COUPANG mark per Policy ¶ 4(a)(i).
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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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 argues that Respondent has no rights or legitimate interests in the <coupanq.com> domain name. Specifically, Complainant asserts that Respondent is not licensed or authorized to use the COUPANG mark and is not commonly known by the disputed domain name. In considering this issue, WHOIS information can support a finding that a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 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 authorization to use a complainant’s mark may demonstrate that the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA 1620789 (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 WHOIS information of record for the <coupanq.com> domain name identifies Respondent as “Danbi Noh,” and there is no evidence to suggest that Respondent is known otherwise or that it is authorized to use the COUPANG mark. The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Moreover, Complainant argues that Respondent is not using the <coupanq.com> domain name in connection with a bona fide offering of goods or services or with a legitimate noncommercial or fair use because Respondent fails to make an active use of the disputed domain name. Failure to make active use of a domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012). In Michelin North, the panel found that inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.” Here, Complainant provides screenshots of the disputed domain name’s resolving website which currently features a mostly blank page with only the words “This’s work!” at the top. This evidence creates a prima facie showing of non-use. For its part, Respondent has not provided a Response or made any other submission in this case and so it has not rebutted Complainant’s evidence or assertion. Thus, upon the preponderance of the evidence, the Panel finds that Respondent does not make a bona fide offering or good or services or a legitimate noncommercial or fair use of the disputed domain name per Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent registered the <coupanq.com> domain name with actual knowledge of Complainant’s rights in the COUPANG mark. Registering a domain name with knowledge of another’s rights therein may form the foundation for proving bad faith under Policy ¶ 4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration). Here, Complainant argues that given the long-standing use and fame of its COUPANG mark and the fact that the disputed domain name incorporates a typosquatted version of the mark, Respondent undoubtedly knew of Complainant’s rights in the mark prior to registering the disputed domain name. In support, Complainant submits into evidence current and archived screenshots from its own coupang.com and coupang-usa.com websites, news articles that mention the mark, images of Complainant’s social media pages, and search engine results for the term “coupang” which exclusively refer to Complainant. Complainant also points out that the COUPANG mark is a coined term with no meaning in any language and is thus highly distinctive. In considering this evidence, the Panel finds it more likely than not that Respondent had actual knowledge of Complainant’s COUPANG mark when it registered the <coupanq.com> domain name.
Next, the Panel notes that Complainant makes no cognizable arguments that would fall under Policy ¶ 4(b). However, such arguments are not required as they are merely illustrative rather than exclusive to support a finding of bad faith. See Home Interiors & Gifts, Inc. v. Home Interiors, D2000-0010 (WIPO Mar. 7, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)], does not mean that the domain names at issue were not registered in and are not being used in bad faith.”). The Panel may find Complainant’s Policy ¶ 4(a)(iii) arguments sufficient to support a finding of bad faith registration and use.
Complainant does assert that Respondent fails to make an active use of, and is thus passively holding the <coupanq.com> domain name. Depending upon all the circumstances of a given case, failure to make an active use of a domain name can evidence bad faith by passive holding under Policy ¶ 4(a)(iii). See John Patrick Davies d/b/a Jigletoes v. Sajima Tan, D2019-0207 (WIPO Mar. 18, 2019) (“panel’s in applying this doctrine [of passive holding] have generally considered the following factors: (i) the degree of distinctiveness or reputation of the complainant’s mark; (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use; (iii) the respondent’s concealment of its identity or use of false contact details; and (iv) the implausibility of any good faith use to which the disputed domain name may be put.”) As noted previously, Complainant provides screenshots of the disputed domain name which resolves to a website that is mostly blanks but which displays the text “This’s work!” at the top. The Panel also notes that the COUPANG mark appears to be highly distinctive as demonstrated by the results of a Google search of the mark that were submitted into evidence by Complainant. A further Google search of the term “coupanq” resulted in the message “Did you mean: coupang?” Next, Respondent has failed to file a Response or make any other submission in this case. Further, although the concerned registrar has informed the Forum of Respondent’s identity for purposes of this case, the public WHOIS record for the <coupanq.com> domain name does not list a Registrant Name and has a blank space next to the field titled Registrant Organization. Next, as Respondent has chosen not to participate in this case, it has not suggested any good faith use to which the disputed domain name may be put and so this seems rather implausible to the Panel. Finally, the Panel notes that Respondent chose the letter “q” in place of the letter “g” in the COUPANG mark and that these letters are visually rather similar. Therefore, by a preponderance of the evidence presented, and in considering and of the circumstances of this case, the Panel finds that Complainant has made a prima facie case for bad faith registration and use per Policy ¶ 4(a)(iii) based upon Respondent’s lack of using the disputed domain name. Respondent has not rebutted this prima facie case and so the Panel is satisfied to let it stand.
Finally, Complainant contends that Respondent engages in typosquatting and that this further supports a finding of bad faith. Misspelling of a complainant’s mark in order to commercially benefit from a confusing similarity between a disputed domain name and the mark can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA 1610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”) The Panel is reminded that Respondent merely replaces the letter “g” with a “q” in the COUPANG mark and that the mark has attained a certain degree of recognition in the online retail industry. Thus, the Panel agrees with Complainant and finds that Respondent’s replacement of a single letter in Complainant’s mark constitutes typosquatting, further evincing bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coupanq.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: May 19, 2020
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