World Wrestling Entertainment, Inc. v. Registrant of wwevip.com c/o liangdashun
Claim Number: FA1806001789964
Complainant is World Wrestling Entertainment, Inc. (“Complainant”), represented by Matthew C. Winterroth of World Wrestling Entertainment, Inc., Connecticut, USA. Respondent is Registrant of wwevip.com c/o liangdashun (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwevip.com>, registered with Xin Net Technology Corporation.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 4, 2018; the Forum received payment on June 4, 2018. The Complaint was received in both Chinese and English.
On June 5, 2018, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <wwevip.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 8, 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 28, 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@wwevip.com. Also on June 8, 2018, the Chinese language 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 July 3, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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.
Panel Note: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings to be Chinese.
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.
A. Complainant
Complainant made the following contentions:
Complainant, World Wrestling Entertainment, Inc. is an integrated media organization and a recognized leader in global entertainment. Complainant has rights in the WWE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,772,683 registered Oct. 7, 2003). See Compl. Annex. 3. Respondent’s <wwevip.com> domain name is confusingly similar to Complainant’s mark as Respondent incorporates the WWE mark in its entirety and merely adds the generic term “vip.”
Respondent lacks rights and legitimate interests in the <wwevip.com> domain name. Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the WWE trademark in any way. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain names to host pay-per-click advertisements. See Compl. Annex 8.
Respondent registered and is using the <wwevip.com> domain name in bad faith. Respondent uses the disputed domain name to disrupt Complainant’s business by directing internet traffic to Respondent’s webpage which contain pay-per-click advertisements. See Compl. Annex 8. Additionally, Respondent had actual and constructive knowledge of Complainant’s WWE mark when it registered the <wwevip.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company which is an integrated media organization and a recognized leader in global entertainment.
3. Respondent registered the disputed domain name on November 30, 2017.
4. Respondent uses the disputed domain name to host pay-per-click advertisements.
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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant claims rights in the WWE mark based upon registration with the USPTO (e.g., Reg. No. 2,772,683 registered Oct. 7, 2003). See Compl. Annex. 3. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (“There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the WWE mark for the purposes of Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s WWE mark. Complainant argues that Respondent’s <wwevip.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the WWE mark in its entirety and merely adds the generic term “vip.” The Panel also notes that the domain name contains the generic top-level domain (“gTLD”), and find that neither change sufficiently distinguishes a domain name for the purposes of Policy ¶4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); 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 therefore finds that the <wwevip.com> domain name is confusingly similar to the WWE mark under Policy ¶4 (a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s WWE mark and has used it in its entirety in the domain name, adding only the generic expression “vip”;
(b) Respondent registered the disputed domain name on November 30, 2017;
(c) Respondent uses the disputed domain name to host pay-per-click advertisements;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends that Respondent has no rights or legitimate interests in the <wwevip.com> domain name. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Registrant of wwevip.com / liangdashun” as the registrant. See Compl. Annex 1. Complainant submits that no evidence exists to show that Respondent has ever been legitimately known by the WWE mark. Panels use these asubmissions as evidence of lacking rights or legitimate interests. 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). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain name prior to its registration, and Complainant has not given Respondent permission to use the mark in any manner. Accordingly, the Panel agrees that Respondent is not commonly known by the <wwevip.com> domain name under Policy ¶ 4(c)(ii);
(f) Complainant submits that Respondent uses the disputed domain name to host pay-per-click advertisements, presumably to benefit commercially from pay-per-click fees. Using a domain name to offer pay-per-click advertisements generally does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides a screenshot of the resolving webpage, which appears to contain links to competing wrestling videos in the Chinese language. See Compl. Annex 8. Accordingly, the Panel finds that Respondent uses the domain name to display wrestling advertisements, failing to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent uses the <wwevip.com> domain name to disrupt Complainant’s business by directing internet traffic to Respondent’s webpage which contains pay-per-click advertisements. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). As noted above, Complainant provides a screenshot of the resolving webpage, which appears to contain links to competing wrestling videos in the Chinese language. See Compl. Annex 8. Accordingly, the Panel agrees that Respondent attempted to benefit commercially off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Secondly, Complainant claims that Respondent had actual or constructive knowledge of Complainant’s WWE mark at the time of registering the <wwevip.com> domain name. Panels usually disregard arguments of bad faith based on constructive notice as prior UDRP decisions generally decline to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and find that actual knowledge does adequately evince bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that Respondent must have had actual knowledge of the WWE mark based on the fame of the mark, the trademark registration for the mark, and Respondent’s use of the domain name. In that regard, it has been decided that Complainant’s WWE Mark is “famous” for UDRP purposes; see World Wrestling Entertainment, Inc. v Damn Crise, FA 1662389 (Forum March 15, 2016). The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
Thirdly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the WWE mark and in view of the conduct that Respondent engaged in when using it, Respondent registered and used the disputed domain name in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwevip.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: July 5, 2018
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