JUUL Labs, Inc. v. chen jing
Claim Number: FA1905001845695
Complainant is JUUL Labs, Inc. (“Complainant”), represented by Alyssa M. Worsham of Wilson Sonsini Goodrich & Rosati, California, US. Respondent is chen jing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ijuul.com>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 30, 2019; the Forum received payment on May 30, 2019.
On June 3, 2019, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <ijuul.com> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 4, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 24, 2019 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@ijuul.com. Also on June 4, 2019, 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 June 26, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, the resolving website is in English. Respondent has received the Commencement Notification in Chinese and has chosen not to respond to the Complaint. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that it operates in the vaporizer and smoking-alternative industry. Complainant posted more than $1 billion in revenue in 2018; it controls approximately 75% of the US e-cigarette market. Complainant has rights in the JUUL mark based upon its registration of the mark in the United States in 2015.
Complainant alleges that the disputed domain name is identical or confusingly similar to its JUUL mark because it wholly incorporates the mark and merely adds the letter “i” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s JUUL mark and is not commonly known by the disputed domain name. 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 because Respondent uses the disputed domain name to host a phishing scheme,
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith: Respondent attempts to attract, for commercial gain, users to the disputed domain name where Respondent uses the disputed domain name to host a phishing scheme. Furthermore, Respondent had actual knowledge of Complainant’s JUUL mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark JUUL and uses it to market vaporizers. Complainant’s rights in its mark date back to at least 2015.
The disputed domain was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website appears to host a phishing scheme.
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”).
The disputed domain name wholly incorporates Complainant’s JUUL mark, and merely adds the letter “i” and the “.com” gTLD. The addition of one letter and a gTLD have been found insufficient to overcome a claim of confusing similarity. See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank’). Therefore the Panel finds that the domain name <ijuul.com> is confusingly similar to the Complainant’s JUUL mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the JUUL mark in any way. Respondent is not commonly known by the disputed domain name: absent a reply, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information indicates that Respondent is known as “chen jing”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving webpage appears to host a phishing scheme. Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Therefore, the Panel finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Furthermore, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, Respondent attempts to attract, for commercial gain, users to the disputed domain which appears to host a phishing scheme. A respondent’s use of a disputed domain name to attempt to gain personal information from users who mistakenly access the website is evidence of bad faith. See Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website); see also Hodge Jones & Allen LLP v. Koichiro Taneda, D2018-1426 (WIPO Aug. 22, 2018) (finding phishing to be extremely strong evidence of bad faith and stating “[p]hishing...can take various forms and in itself is the evidence that the disputed domain name was registered and is being used in bad faith.”). Thus, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ijuul.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 27, 2019
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