Wiluna Holdings, LLC v. Zhichao Yang
Claim Number: FA1806001793175
Complainant is Wiluna Holdings, LLC (“Complainant”), represented by John O’Malley of Volpe and Koenig, P.C., Pennsylvania, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <claps4sale.com>, registered with NameSilo, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 21, 2018; the Forum received payment on June 21, 2018.
On June 22, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <claps4sale.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 26, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 16, 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@claps4sale.com. Also on June 26, 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 July 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Wiluna Holdings, LLC, owns and operates a website featuring adult-entertainment oriented media. Complainant uses the CLIPS4SALE.COM mark to provide and market its products and services. Complainant claims rights in the marks based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,508,680, registered on Sep. 30, 2008). Respondent’s <claps4sale.com> is confusingly similar as it contains Complainant’s CLIPS4SALE.COM mark in its entirety, merely replacing the letter “i” for the letter “a.”
Respondent does not have rights or legitimate interests in the <claps4sale.com> domain name. Respondent is not permitted or licensed to use Complainant’s CLIPS4SALE.COM mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <claps4sale.com> domain name to divert Internet users to Respondent’s website where Respondent hosts pay-per-click advertisements which compete directly with Complainant’s business.
Respondent has registered and used the <claps4sale.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name which features click-through advertisements to third party websites that compete with Complainant. Moreover, Respondent engaged in typosquatting by substituting the letter “i” for the letter “a” in the CLIPS4SALE.COM mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Wiluna Holdings, LLC, owns and operates a website featuring adult-entertainment oriented media. Complainant uses the CLIPS4SALE.COM mark to provide and market its products and services. Complainant has rights in the marks under Policy ¶ 4(a)(i) based upon registration with the USPTO (e.g., Reg. No. 3,508,680, registered on Sep. 30, 2008). Respondent’s <claps4sale.com> domain name is confusingly similar to Complainant’s CLIPS4SALE.COM mark.
Respondent created the <claps4sale.com> domain name on January 19, 2018.
Respondent does not have rights or legitimate interests in the <claps4sale.com> domain name. Respondent uses the <claps4sale.com> domain name to divert Internet users to Respondent’s website where Respondent hosts pay-per-click advertisements which compete directly with Complainant’s business.
Respondent has registered and used the <claps4sale.com> domain name 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., 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., 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 has rights in the CLIPS4SALE.COM mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Haas Automation, Inc., 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)).
Respondent’s <claps4sale.com> domain name is confusingly similar to the CLIPS4SALE.COM mark as it contains the mark in its entirety, merely replacing the letter “i” for the letter “a”.
Respondent has no rights or legitimate interests in the <claps4sale.com> domain name. Respondent is not authorized to use Complainant’s CLIPS4SALE.COM mark. The WHOIS information of record identifies the Registrant of the domain name as “Zhichao Yang.” Therefore, Respondent is not commonly known by the disputed domain name. Where a response is lacking, relevant WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines, 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.).
Respondent fails to use the <claps4sale.com> domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Respondent uses the disputed domain name to host a parked webpage that contains links to third party websites which compete with Complainant’s business. Use of a disputed domain name to host a parked webpage that contain third party links to Complainant’s competitors is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Coachella Music Festival, LLC, FA 1629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant).
Respondent registered and uses the <claps4sale.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name which features click-through advertisements that redirect users to Complainant’s competitors. Using a confusingly similar domain name to disrupt a complainant’s business and commercially benefit via competing, pay-per-click links shows bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See American Council on Education and GED Testing Service LLC, FA 1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”).
As Respondent merely replaced the letter “i” with an “a” in the CLIPS4SALE.COM mark, Respondent engaged in typosquatting. Misspelling of a complainant’s mark in order to commercially benefit from a confusing simliarity between a disputed domain name and the mark shows bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc., 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).”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <claps4sale.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 30, 2018
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