Linode, LLC v. Kong Deyuan
Claim Number: FA1811001816284
Complainant is Linode, LLC (“Complainant”), represented by Alexis Arena of Flaster/Greenberg, P.C., Pennsylvania, USA. Respondent is Kong Deyuan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <linode.app>, registered with Super Registry Ltd.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 13, 2018; the Forum received payment on November 13, 2018.
On November 16, 2018, Super Registry Ltd confirmed by e-mail to the Forum that the <linode.app> domain name is registered with Super Registry Ltd and that Respondent is the current registrant of the name. Super Registry Ltd has verified that Respondent is bound by the Super Registry Ltd 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 November 20, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 10, 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@linode.app. Also on November 20, 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 December 17, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Linode, LLC., is a privately-owned virtual private server provider company. Complainant has rights in the LINODE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,816,150, registered July 13, 2010.) See Compl. Ex. B. Respondent’s <linode.app> domain name is identical to the LINODE mark, as it contains Complainant’s mark in its entirety, merely adding the “.app” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <linode.app> domain name because Respondent is not using the <linode.app> 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 is using the <linode.app> domain name in bad faith. Respondent attempts to sell the disputed domain name to Complainant for an amount in excess of out-of-pocket costs. Additionally, Respondent fails to make an active use of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on May 8, 2018.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark; that Respondent lacks any rights or legitimate interests in or to the dispute domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 Panel finds that the disputed domain name, <linode.app>, is confusingly similar to Complainant’s trademark, LINODE. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely appending the gTLD “.app” to the end of Complainant’s precise trademark. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Also, Respondent is not using the disputed 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.
As such, the Panel finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent apparently has attempted to sell the disputed domain name. Offering a disputed domain name for sale for more than its estimated out-of-pocket costs may be evidence of bad faith per Policy ¶ 4(b)(i), See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Complainant contends that Respondent offered to sell the disputed domain name for $10,000, an amount in excess of out-of-pocket costs. See Compl. Ex. E.
Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Respondent also apparently fails to make an active use of the disputed domain name and is passively holding it. Failure to make an active use a domain name may be evidence of bad faith under Policy ¶ 4(a)(iii). See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA1312001532854 (Forum February 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”) Complainant provides screenshots of the webpages associated with the disputed domain name which show an inactive webpage. See Compl. Ex. D. Therefore, Panel finds that Respondent’s inactive use of the disputed domain name indicates bad faith registration and use per Policy ¶ 4(a)(iii).
Furthermore, the Panel finds that Respondent had actual knowledge of Complainant’s trademark and its rights therein. Given the Respondents usurpation of the Complainant’s trademark in building its disputed domain name and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s rights and interests in the trademark Linode.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <linode.app> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: December 18, 2018
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