Paymentus Corporation v. Yang Zhi Chao
Claim Number: FA2108001961595
Complainant is Paymentus Corporation (“Complainant”), represented by Stephen M. Vaughn of Morris, Manning & Martin, LLP, Georgia, USA. Respondent is Yang Zhi Chao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <paymnetus.com>, <paumentus.com> and <paymenus.com>, registered with DNSPod, Inc..
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 30, 2021. The Forum received payment on August 30, 2021.
On August 30, 2021, DNSPod, Inc. confirmed by e-mail to the Forum that the <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names are registered with DNSPod, Inc. and that Respondent is the current registrant of the names. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, Inc. registration agreement, which is in Chinese, 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 September 3, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in both English and Chinese, setting a deadline of September 23, 2021 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@paymnetus.com, postmaster@paumentus.com and postmaster@paymenus.com. Also on September 3, 2021, the English and Chinese 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 September 27, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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
As noted, the DNSPod, Inc. registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding shall be Chinese, unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, noting that the <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names resolve to English language websites with an identical lengthy and detailed privacy policy in English. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Chinese language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant, Paymentus Corporation, is a provider of electronic bill presentment and payment services. Complainant has rights in the PAYMENTUS mark based upon registration with the United States Patent and Trademark Office. Respondent’s <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names are confusingly similar to Complainant’s PAYMENTUS mark.
Respondent does not have rights or legitimate interests in the <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names because Respondent is not commonly known by the domain names and is not licensed to use Complainant’s PAYMENTUS mark. Additionally, Respondent fails to use the domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent displays pay-per-click links at the websites to which the domain names resolve and, on information and belief, is using them in connection with phishing.
Respondent registered the <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names in bad faith with actual knowledge of Complainant’s rights in the PAYMENTUS mark because Respondent was the subject of another UDRP complaint successfully brought by Complainant under the mark and decided on July 9, 2020, before Respondent registered the domain names at issue in this case on September 24, 2020. See Paymentus Corporation v. Zhi Chao Yang, FA1899379 (Forum July 9, 2020) (transferring to Complainant the domain name <ipn2paymentus.com> registered by Respondent). Hence Respondent is engaging in a pattern of bad faith domain name registration.
Additionally, Respondent uses the domain names in bad faith to resolve to websites displaying related hyperlinks and, on information and belief, is using them in furtherance of an email phishing scheme. Respondent’s domain name registrations also constitute typosquatting in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the PAYMENTUS mark based upon registration with the USPTO (Reg. No. 5,099,998, registered Dec. 13, 2016). The Panel finds Respondent’s <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names to be confusingly similar to Complainant’s PAYMENTUS mark since the mark is the primary element of each domain name with a minor misspelling and the addition of the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or names corresponding to the domain names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names were registered on September 24, 2020, several years after Complainant registered its PAYMENTUS mark and only a few weeks after the decision in Paymentus Corporation v. Zhi Chao Yang, FA1899379 (Forum July 9, 2020). The domain names resolve to websites with pay-per-click advertising links to third party providers of services of the same nature as those of Complainant.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has established this element.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element, especially the timing of the registrations of the <paymnetus.com>, <paumentus.com> and <paymenus.com> domain names, being shortly after the decision in Paymentus Corporation v. Zhi Chao Yang, FA1899379 (Forum July 9, 2020), clearly show that Respondent was fully aware of Complainant’s PAYMENTUS mark when Respondent registered the domain names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
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 <paymnetus.com>, <paumentus.com>, and <paymenus.com> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 28, 2021
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