Taboola.com Ltd. v. jiang zan
Claim Number: FA2208002008208
Complainant is Taboola.com Ltd. (“Complainant”), Israel. Respondent is jiang zan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <taboola.host>, (‘the Domain Name’) registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
The undersigned certifies that she has acted independently and impartially and to the best of 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 August 12, 2022; the Forum received payment on August 12, 2022.
On August 15, 2022, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <taboola.host> 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 August 17, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of September 6, 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@taboola.host. Also on August 17, 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 September 13, 2022 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 circumstances of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark TABOOLA registered in the USA for Internet related services with first use recorded as 2008.
The Domain Name registered in 2022 is identical to the Complainant’s trade mark for the purposes of the Policy adding only the gTLD “.host” which does not distinguish the Domain Name from the Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for a blank page containing the word ‘It Works’ at the top in plain text. This is not a bona fide offering of goods or services or a legitimate non commercial fair use. It is registration and use in opportunistic bad faith diverting and confusing Internet users and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark TABOOLA registered in the USA for Internet related services with first use recorded as 2008.
The Domain Name registered in 2022 points to a page which is blank save for the words ‘It Works.’ at the top in plain text.
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 TABOOLA mark (which is registered, inter alia, in the USA with first use for internet services recorded as 2008) and the gTLD “.host”.
The gTLD “.host” does not serve to distinguish a domain name from a 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 to the Complainant’s registered mark for the purposes of the Policy.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent is not authorized by the Complainant and does not appear to be commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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).
In a previous case where the Domain Name was directed to a blank page displaying the message ‘stop!’ it was held that this was not a bona fide offering of goods or services or a legitimate non commercial or fair use. See Wahl Clipper Corporation v. Theresa W Chavez, FA2111001973154 (Forum Dec. 14, 2021) (“Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain names merely resolve to inactive websites displaying the message “Stop!” When Respondent is not using a disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services. [...] Respondent thus appears to have not made demonstrable preparations to use the disputed domain names since their registration. Therefore, the Panel finds that Respondent failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).”).
The Respondent has not answered this Complaint and has not explained why it should be entitled to register a domain name containing the Complainant’s mark which is not a descriptive term and has a reputation for Internet search services and not make active use of it other than directing it to a blank page containing the word ‘It Works.’ The Respondent has not provided any evidence at all of its position.
As such the Panel 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
The Domain Name containing the Complainant’s mark which has a reputation for Internet search services is being passively held with a limited holding page without any explanation causing disruption to the Complainant’s business. TABOOLA is distinctive and not a descriptive term.
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) cited in Wahl Clipper Corporation v. Theresa W Chavez, FA2111001973154 (Forum Dec. 14, 2021) (where the Panel held that in case of the use of a domain name containing a complainant’s mark with a reputation which had been used for a blank page featuring the message ‘Stop!’ without further explanation that this was unjustified disruption of a complainant’s business where respondent provided no evidence whatsoever of any actual or contemplated good faith.)
As such, the Panel holds 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.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <taboola.host> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 13, 2022
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