World Wrestling Entertainment, Inc. v. chen xian
Claim Number: FA2110001967902
Complainant is World Wrestling Entertainment, Inc. (“Complainant”), represented by Matthew C. Winterroth of World Wrestling Entertainment, Inc., Connecticut, USA. Respondent is chen xian (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <321wwe.com>, registered with eName Technology Co., Ltd.
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 October 6, 2021. The Forum received payment that day. The Complaint was received in English.
On October 7, 2021, eName Technology Co., Ltd. confirmed by e-mail to the Forum that the <321wwe.com> domain name is registered with eName Technology Co., Ltd. and disclosed registrant and contact information for the domain name which differed from the named Respondent and contact information in the Complaint. eName Technology Co., Ltd. has verified that Respondent is the current registrant of the name; is bound by the eName Technology Co., Ltd. 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 October 8, 2021, the Forum invited Complainant to amend the Complaint to properly identify the Respondent and its contact information and either to translate the Complaint into Chinese or to explain why Respondent is capable of understanding English and therefore, the proceedings should be conducted in English.
On October 11, 2021, Complainant submitted an Amended Complaint in both English and Chinese.
On October 12, 2021, the Forum served the Chinese language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of November 1, 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@321wwe.com. Also on October 12, 2021, 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 November 8, 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 PROCEEDINGS
As noted, the eName Technology Co., Ltd. registration agreement is in Chinese.
Pursuant to Rule 11(a), the language of the proceeding in relation to the <321wwe.com> domain name 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.
The Panel notes that the <321wwe.com> domain name is in English and resolves to a website in both English and Chinese. 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 Chinese language Amended Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant, World Wrestling Entertainment, Inc. and its licensees provide retail and entertainment services worldwide, including online. Complainant has rights in the WWE mark based on numerous registrations, including with the United States Patent and Trademark Office (“USPTO”) and in China. Respondent’s <321wwe.com> domain name is confusingly similar to Complainant’s WWE mark.
Respondent does not have rights or legitimate interests in the <321wwe.com> domain name. Respondent is not commonly known by the domain name and Complainant has not licensed or authorized Respondent to use the WWE mark. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to divert users to Respondent’s own website where it offers counterfeit goods for sale.
Respondent registered and uses the <321wwe.com> domain name in bad faith. Respondent uses the domain name to pass itself off as Complainant and offer counterfeit goods for sale. Additionally, Respondent had actual knowledge of Complainant’s rights in the WWE mark based on the registration of the mark and Respondent’s use of the domain name.
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 WWE mark through numerous registrations around the world, including with the USPTO (e.g., Reg. 2,772,683, registered October 7, 2003) and in China (e.g., Reg. 3211638, registered August 7, 2003). The Panel finds Respondent’s <321wwe.com> domain name to be confusingly similar to Complainant’s WWE mark as it merely adds the number “321” to Complainant’s mark, which does nothing to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests (one domain name)
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name 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 name, 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 name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <321wwe.com> domain name was registered on April 30, 2010, many years after Complainant has shown that its WWE mark had become famous worldwide, including in China. It resolves to a website in both English and Chinese, displaying Complainant’s WWE mark and depicting for sale merchandise offered by Complainant and its licensees through their respective websites.
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 name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <321wwe.com> domain name. 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 name.
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 name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, 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 satisfy the Panel that Respondent was fully aware of Complainant’s famous WWE mark when Respondent registered the <321wwe.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the goods promoted on that website. 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 <321wwe.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: November 9, 2021
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