The University of Pittsburgh of the Commonwealth System of Higher Education v. qianmengdan
Claim Number: FA2207002004643
Complainant is The University of Pittsburgh of the Commonwealth System of Higher Education (“Complainant”), represented by Michael E. Dukes of Dentons Cohen & Grigsby PC, Pennsylvania, USA. Respondent is qianmengdan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vaccineupmc.com>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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 July 18, 2022. The Forum received payment on July 18, 2022. The Complaint was received in both Chinese and English.
On July 20, 2022, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <vaccineupmc.com> 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, 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 July 25, 2022, 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 August 15, 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@vaccineupmc.com. Also on July 25, 2022, 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 August 17, 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 Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding in relation to the <vaccineupmc.com> domain name shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
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 is a Pennsylvania-based research University. Complainant has rights in the UPMC mark through registrations with the Chinese State Administration of Industry and Commerce (“SAIP”). The domain name <vaccineupmc.com> is confusingly similar to Complainant’s registered mark.
Respondent lacks rights or legitimate interests in the <vaccineupmc.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the UPMC mark in any way. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use. Instead, Respondent uses the domain name to host third party pay-per-click links and advertisements.
Respondent registered and uses the <vaccineupmc.com> domain name in bad faith to benefit commercially by creating a likelihood of confusion with Complainant and hosting a parked page generating click-through revenue.
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 UPMC mark through registrations with the SAIP (e.g., Ser. No. zc10144316SL registered November 21, 2011). The Panel finds the domain name <vaccineupmc.com> to be confusingly similar to Complainant’s mark because it wholly incorporates the mark and adds the term “vaccine”, which is insufficient 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
(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 <vaccineupmc.com> domain name was registered on February 19, 2021, many years after the registration of Complainant’s UPMC mark in China. It resolves to a parked website with pay-per-click hyperlinks related to vaccine information pertaining to the products and services offered by Complainant under its mark.
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 <vaccineupmc.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
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
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 UPMC mark when Respondent registered the <vaccineupmc.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 sponsorship, affiliation, or endorsement of Respondent’s website and of the goods or services 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 <vaccineupmc.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: August 18, 2022
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