LI ZHISHUN v. WHOIS AGENT / WHOIS PRIVACY PROTECTION SERVICE, INC.
Claim Number: FA1408001573375
Complainant is LI ZHISHUN (“Complainant”), China. Respondent is WHOIS AGENT / WHOIS PRIVACY PROTECTION SERVICE, INC. (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue is <90win.com>, <90win.net>, and <90bf.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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 5, 2014; the National Arbitration Forum received payment on August 5, 2014.
On August 6, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <90win.com>, <90win.net>, and <90bf.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 August 11, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 2, 2014 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@90win.com, postmaster@90win.net, and postmaster@90bf.com. Also on August 11, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 8, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Ho Hyun Nahm as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant.
1. Complainant has rights in the 90WIN.COM mark under Policy 4(a)(i).
a. Complainant has continuously provided services to its customers via its Internet platform through the use of the 90WIN.COM mark.
b. Complainant’s 90WIN.COM mark is stated under the Business License number Yeu B2-20100237.
2. Respondent has no rights or legitimate interests in the disputed domain names.
a. Complainant has not authorized Respondent to use any of the disputed domain names.
b. Respondent’s disputed domain names were being pushed and transferred from eNom, Inc. to GoDaddy.com, LLC without authorization.
3. Respondent uses the disputed domain names in bad faith.
a. Respondent uses the disputed domain names to disrupt complainant’s official website.
1. Respondent did not submit a response.
2. The Panel notes the earliest domain name was registered August 7, 2008.
3. The Panel notes that Whois Privacy Protection Service, Inc. claims in its submission that Complainant has incorrectly named WPPS as Registrant. WPPS states that it is a privacy service, and not the registrant of the disputed domain names. WPPS requests that the Panel refrain from making a finding that it acted in bad faith since it is not the actual registrant of the disputed domain names.
i) Complainant who is a mere majority shareholder and a legal representative of the legal entity “Dongguan Xunying Technology Computer Co., Ltd.”, who may have the rights in the 90WIN.COM mark, does not have standing to bring the claims under Policy 4(a)(i), and
ii) Complainant has not satisfied Policy ¶ 4(a)(i), and thus the Panel declines to analyze the other two elements of the Policy.
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(e), 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 (Nat. Arb. 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.”).
Complainant claims that it has rights in the 90WIN.COM mark under Policy 4(a)(i) because it is a majority shareholder of a venture that does business under that name. Complainant asserts that the 90WIN.COM mark is stated under the Business License number Yeu B2-20100237. See Complainant’s Items 2.b-c. Complainant also contends that it has continuously provided services to its customers via its Internet platform through the use of the 90WIN.COM mark.
The Panel notes that the one who has continuously provided services to its customers via its Internet platform through the use of the 90WIN.COM mark is not Complainant but the legal entity “Dongguan Xunying Technology Computer Co., Ltd.”
The Panel also notes that Complainant is a mere shareholder and a legal representative of the legal entity “Dongguan Xunying Technology Computer Co., Ltd.”, who has used the 90WIN.COM mark. Although Complainant is a majority shareholder and a legal representative of the company, the Panel is of the view that Complainant does not have standing to bring those claims under the UDRP. If otherwise interpreted, it would result in harming the interests of other shareholder(s) of the company. See TM Acquisition Corp. v. S.E.A. Domains, FA 156800 (Nat. Arb. Forum June 12, 2003) (dismissing the complainant’s claim against the respondent with respect to domain names that were identical to the names of the complainant’s in-house attorney and Chief Executive Officer, as the complainant did not have standing to bring those claims under the UDRP).
As the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i), the Panel declines to analyze the other two elements of the Policy. See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary); see also Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <90win.com>, <90win.net>, and <90bf.com> domain names REMAIN WITH Respondent.
Ho Hyun Nahm, Esq., Panelist
Dated: September 17, 2014
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