Twitter, Inc. v. liu wan jie
Claim Number: FA2011001921103
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas. Respondent is liu wan jie (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <periscope.website> (‘the Domain Name’), registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 18, 2020; the Forum received payment on November 18, 2020. The Complaint was received in English.
On November 19, 2020, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <periscope.website> 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 November 24, 2020, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of December 14, 2020 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@periscope.website. Also on November 24, 2020, the Chinese and English 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 December 17, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the mark PERISCOPE and its periscope logo both registered, inter alia, in the USA for social video casting services and used since at least 2015. It owns <periscope.tv>.
The Domain Name registered in 2020 is identical to the Complainant’s mark for the purposes of the Policy adding only the gTLD '.website'.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name is being used for competing social video casting services mimicking the Complainant’s site, using the Complainant’s logo and a copyright notice which refers to the Complainant. This is misleading and is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith confusing Internet users for commercial gain and disrupting the Complainant’s business.
The Domain Name is also for sale generally for $588 which is also indicative of a lack of rights or legitimate interests and bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark PERISCOPE and its periscope logo both registered, inter alia, in the USA for social video casting services and used since at least 2015. It owns <periscope.tv>.
The Domain Name registered in 2020 is being used for competing social video casting services mimicking the Complainant’s site, using the Complainant’s marks and logo as a masthead and a copyright notice which refers to the Complainant. The Domain Name is also for sale generally for $588.
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 Domain Name consists of the Complainant's PERISCOPE mark (which is registered, inter alia, in USA for social video cast services with use since at least 2015) merely adding the gTLD '.website'.
The gTLD '.website' does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).
The web site attached to the Domain Name mimics the Complainant’s web site and uses the Complainant’s marks and the Complainant’s logo as a masthead and a copyright notice that refers to the Complainant to offer competing social video case services so that the Respondent’s site appears to be an official site of the Complainant. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
An offer to sell a domain name containing a third party’s trade mark for a sum in excess of registration costs can be evidence that a respondent lacks rights or legitimate interests in the domain. See AOL Inc. v. YourJungle Privacy Protection Service aka Whois Agent, FA1312001533324 (Forum Jan. 17, 2014) (“Respondent has offered the <aoljobsweek.com> domain name for sale to the general public, which demonstrates that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant. The site mimics the Complainant’s web site and uses the Complainant’s marks and the Complainant’s logo as a masthead to offer competing social video cast services. The use of the Complainant's marks and logo and reference to the Complainant in the copyright notice shows that the Respondent is aware of the Complainant, its business, rights and services. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant.
The Domain Name has also been offered for sale generally for a sum in excess of likely costs of registration which also amounts to registration and use in bad faith under the Policy. See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Forum June 23, 2003) (finding that when the domain name itself notes that it is “available for lease or sale,” evidence that the domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(i) can be inferred from the fact that “the sole value of the [<wwwdinersclub.com] domain name is dictated by its relation to the complainant’s registered DINERS CLUB mark).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(i), (iii), and (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 <periscope.website> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 17, 2020
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