ContextLogic Inc. v. 林 凡
Claim Number: FA2208002009717
Complainant is ContextLogic Inc. (“Complainant”), USA, represented by Caitlin R. Byczko of Barnes & Thornburg LLP, Indiana, USA. Respondent is 林 凡 (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wishglobal.live>, registered with Name.com, Inc..
The undersigned certifies that he acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 25, 2022; the Forum received payment on August 25, 2022.
On August 25, 2022, Name.com, Inc. confirmed by e-mail to the Forum that the <wishglobal.live> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 26, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 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@wishglobal.live. Also on August 26, 2022, the 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 26, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho-Hyun Nahm, Esq. 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.
A. Complainant
i) Complainant, ContextLogic Inc.
operates an e-commerce platform. Complainant asserts rights in the WISH mark
based upon registration with the United States Patent and Trademark Office
(“USPTO”) (e.g., Reg. No. 4,311,924, registered April
2, 2013). The
disputed domain name is confusingly similar to Complainant’s WISH trademark because it incorporates the mark in its entirety and adds the generic term
“GLOBAL” and top-level domain name (“TLD”) “.live”.
ii) Respondent
does not have rights or legitimate interests in the disputed domain
name. Respondent is not licensed or authorized to use Complainant’s WISH mark and is not commonly known by the disputed domain name. Respondent
also does not use the disputed domain name for any bona fide offering of
goods or services or legitimate noncommercial or fair use. Respondent
attempts to phish for personal information.
iii) Respondent
registered and uses the disputed domain name
in bad faith. Respondent disrupts Complainant’s business. Respondent attempts
to phish for Internet users’ personal information. Respondent had
actual or constructive knowledge of Complainant’s rights in the WISH mark prior
to registration.
B. Respondent
Respondent did not submit a response in this proceeding. The disputed domain name was registered on May 20, 2022.
1. The disputed domain name was registered on May 20, 2022.
2. Complainant has established rights in the WISH mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,311,924, registered April 2, 2013).
3. Respondent attempts to phish for
personal information.
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 asserts rights in the WISH mark based upon registration with the USPTO (e.g., Reg. no. 4,311,924, registered April 2, 2013). Registration of a mark with the USPTO is considered a valid showing of rights under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”); see also Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). As Complainant has provided evidence of registration of the WISH mark with the USPTO, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name <wishglobal.live> is confusingly similar to Complainant’s WISH trademark because it incorporates the mark in its entirety and adds the generic term “GLOBAL” and TLD “.live”. The additions of a generic term and TLD are insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s WISH mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the <wishglobal.live> domain name because Respondent is not licensed or authorized to use Complainant’s WISH mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed 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). The WHOIS information for the disputed domain name lists the registrant as “林 凡.” Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant contends Respondent also does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to phish for personal information. Phishing for personal identification information from Internet users does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”). Here, Complainant provides screenshots of the disputed domain name's resolving webpage showing use of Complainant’s mark and invitation for visitors to input their account name and password. Thus, the Panel finds Respondent does not provide a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues Respondent registered and uses the disputed domain name in bad faith by disrupting Complainant’s business. Disruption of a complainant’s business which is not directly competitive behavior is nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)). Complainant provides several instances in which its customers have been deceived by the content associated with the disputed domain name. Complainant contends that in seeing the WISH marks used on the associated website and as part of the disputed domain name, consumers were led to believe that Respondent was associated with Complainant when in fact it is not. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith by disrupting Complainant’s business by way of passing itself off as Complainant.
Additionally, Complainant asserts Respondent attempts to phish for Internet users’ personal information. Respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further establishes its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). The Panel recalls Complainant provides screenshots of the disputed domain name's resolving webpage showing use of Complainant’s mark and invitation for visitors to input their account name and password. Therefore, the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant further contends Respondent had actual or constructive knowledge of Complainant’s rights in the WISH mark prior to registration. The Panel infers, due to the notoriety of Complainant's mark and the manner of use of the disputed domain name that Respondent had actual knowledge of rights in Complainant's WISH mark at the time of registering the disputed domain name, which supports a finding of bad faith registration per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wishglobal.live> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: October 3, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page