Twitter, Inc. v. Zhang Jie / 张杰
Claim Number: FA2011001919786
Complainant is Twitter, Inc. ("Complainant"), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Zhang Jie / 张杰 ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <twitter.luxe>, registered with DNSPod, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 6, 2020; the Forum received payment on November 6, 2020.
On November 8, 2020, DNSPod, Inc. confirmed by email to the Forum that the <twitter.luxe> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, Inc. 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 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@twitter.luxe. Also on November 12, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 8, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 operates a global real-time information network that has more than 180 million daily active users. Complainant has used the TWITTER mark in connection with this service since 2006. The mark is the subject of trademark registrations in the United States and other jurisdictions around the world, and has been found to be famous in prior proceedings under the Policy.
Respondent registered the disputed domain name <twitter.luxe> in October 2020. As of late October the domain name was used for a website displaying what appears to be a social media feed. Complainant describes the site as a "slavish imitation" of its own website, including Complainant's logo and a post purportedly from "Jack" (presumably a reference to Complainant's CEO). More recently, the domain name resolved to a webserver configuration error notice. Complainant states that Respondent is not commonly known by the TWITTER mark, is not affiliated with Complainant, is not licensed to use the TWITTER mark, and is not an authorized vendor, supplier, or distributor of Complainant's goods and services.
Complainant contends on the above grounds that the disputed domain name <twitter.luxe> is confusingly similar to its TWITTER mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The Panel notes that the Registration Agreement is written in Chinese. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. Complainant requests that the proceeding be conducted in English, noting inter alia that the disputed domain name is composed of an English-language word and gTLD, corresponds to the name of a U.S. company, and is being used for a website that includes English-language content. In addition, the Panel notes that the Written Notice of the Complaint was served upon Respondent in both English and Chinese, and Respondent has made no objection to Complainant's request that the proceeding be conducted in English.
Under the circumstances, the Panel finds it likely that Respondent is conversant in the English language, has received adequate notice of this proceeding, and has chosen not to participate. The Panel sees no reason to require Complainant to bear the burden and expense of arranging for a Chinese translation that is likely unnecessary to afford proper notice to Respondent, and that in any event Respondent is likely to ignore. See, e.g., Brooks Sports, Inc. v. Liuzhao, FA 1900494 (Forum July 24, 2020) (deciding to conduct proceeding in English in similar circumstances). The Panel decides that English shall be the language of this proceeding.
The disputed domain name <twitter.luxe> corresponds to Complainant's registered TWITTER trademark, with the ".luxe" top-level domain appended thereto. The addition of a top-level domain is normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Morgan Stanley v. Data Protected Ltd., FA 1874572 (Forum Jan. 10, 2020) (finding <morganstanley.luxe> identical to MORGAN STANLEY); De Beers Intangibles Ltd. v. Data Protected Ltd., D2019-1447 (WIPO Aug. 26, 2019) (finding <forevermark.luxe> identical to FOREVERMARK); Airbnb, Inc. v. Data Protected Ltd., FA 1854961 (Forum Aug. 30, 2019) (finding <airbnb.luxe> identical to AIRBNB); Twitter, Inc. v. Moniker Privacy Services/ Accueil des Solutions Inc, D2013-0062 (WIPO Apr. 1, 2013) (finding <twitter.org> confusingly similar to TWITTER). The Panel considers the disputed domain name to be identical to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's famous registered mark without authorization, and it is being used for a website that mimics Complainant's site, even displaying Complainant's logo and the handle of its CEO. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Ltd., FA 1603444 (Forum Mar. 19, 2019) (finding lack of rights or interests arising from use of social media platform trademark for competing website).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name corresponding to Complainant's famous mark and promptly began using it for a website mimicking Complainant's site. The Panel infers that Respondent was at all relevant times aware of and intentionally targeted Complainant and its mark, and that Respondent's intentions involve commercial gain. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Ltd., supra. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twitter.luxe> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 9, 2020
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