VNG Corporation v. Chen Yin Sheng
Claim Number: FA2112001977426
Complainant is VNG Corporation (“Complainant”), Vietnam. Respondent is Chen Yin Sheng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zalo.vip>, 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 December 17, 2021. The Forum received payment on December 17, 2021. The Complaint was received in English.
On December 20, 2021, DNSPod, Inc. confirmed by e-mail to the Forum that the <zalo.vip> 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, 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 December 23, 2021, the Forum served the English language Complaint and all Annexes, including an English and a Chinese language Written Notice of the Complaint, setting a deadline of January 12, 2022 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@zalo.vip. Also on December 23, 2021, the English and Chinese 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 January 18, 2022, 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 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 contends that the proceeding should be in English because the <zalo.vip> domain name consists of Latin characters; the resolving website for the domain name features phrases and documents in English; and that, following verification by the Registrar of Respondent’s identity and contact details, Respondent replied to Complainant’s email communications in English. Additionally, Complainant says it has no knowledge of the Chinese language and it would cause undue burden and delay to conduct the proceedings in Chinese.
The Panel finds that persuasive evidence has been adduced by Complainant to establish that Respondent is conversant and proficient in the English language. Pursuant to Rule 11(a), after considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
Complainant, VNG Corporation, operates the famous instant messaging app under the ZALO mark. Complainant has rights in the ZALO mark based on registrations including with the World Intellectual Property Organization (“WIPO”). Respondent’s <zalo.vip> domain name is identical to Complainant’s ZALO mark.
Respondent does not have rights or legitimate interests in the <zalo.vip> domain name. Respondent is not commonly known by the domain name and Complainant has not licensed or permitted Respondent to use the ZALO mark. 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 advertise WeChat, a competing messaging service.
Respondent registered the <zalo.vip> domain name in bad faith with actual knowledge of Complainant’s rights in the ZALO mark based on the fame and distinctiveness of the mark. Respondent uses the domain name in bad faith to advertise the services of Complainant’s direct competitor.
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 ZALO mark based on numerous registrations, including with WIPO (e.g., Int. Reg. No. 1308037, registered Dec. 28, 2015, designating several countries including China). The Panel finds Respondent’s <zalo.vip> domain name to be identical to Complainant’s ZALO mark as it merely adds to the mark the inconsequential “.vip” 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 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 <zalo.vip> domain name was registered on September 16, 2017, by which time Complainant has shown that its ZALO app had achieved over 45 million users since its launch in 2012 and had become famous. The <zalo.vip> domain name resolves to a website promoting WeChat, an instant messaging app that competes with Complainant’s ZALO app and is owned by the Tencent Group of companies. Respondent is an employee of Tencent.
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 <zalo.vip> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019) (“According to the majority of Panel decisions this Panel also takes the position that while Complainant has the burden of proof on this issue, once the Complainant has made a prima facie showing, the burden of production shifts to the Respondent to show by providing concrete evidence that it has rights to or legitimate interests in the domain name at issue.”).
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.
Registration and Use in Bad Faith
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s famous ZALO mark when Respondent registered the <zalo.vip> domain name and that Respondent registered the domain name in bad faith and has used it in bad faith to promote the competing WeChat app.
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 <zalo.vip> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: January 20, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page