Arris Enterprises LLC v. wang xian sheng
Claim Number: FA2210002016416
Complainant is Arris Enterprises LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota. Respondent is wang xian sheng (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <buyruckuswireless.com>, registered with Hongkong Domain Name Information Management Co., Limited.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on October 18, 2022; Forum received payment on October 18, 2022.
On Oct 20, 2022, Hongkong Domain Name Information Management Co., Limited confirmed by e-mail to Forum that the <buyruckuswireless.com> domain name is registered with Hongkong Domain Name Information Management Co., Limited and that Respondent is the current registrant of the names. Hongkong Domain Name Information Management Co., Limited has verified that Respondent is bound by the Hongkong Domain Name Information Management Co., Limited 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 October 21, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 10, 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@buyruckuswireless.com. Also on October 21, 2022, the Written Notice of the Complaint, in English and Chinese, 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, Forum transmitted to the parties a Notification of Respondent Default in English and Chinese.
On November 17, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Preliminary Issue: Language of Proceeding
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Complainant provides evidence showing that Respondent has been found to be conversant and proficient in the English language in previous UDRP proceedings. See Tiger Global Mgmt, LLC v. wang xian sheng, FA2001233 (Forum Sept. 14, 2022); Snap Inc. v. Wang Xian Sheng, FA1990901 (Forum June 1, 2022); SAI Momentun CDJR Sealy, LLC v. Wang Xian Sheng, FA1991501 (Forum May 27, 2022); Dell Inc. v. wang xian sheng, FA1986970 (Forum April 11, 2022) (proceeding in English language).
In the present case, Respondent has received the Written Notice and Commencement Notification in Chinese and has chosen not to respond to the Complaint. Respondent is conversant and proficient in English. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that Ruckus Networks (formerly known as Ruckus Wireless) started in 2002 with a focus on in-home IPTV content distribution over wireless networks. Ruckus designed an adaptive directional antenna technology, which was sold to other manufacturers to include in their products. Ruckus offers WiFi products such as indoor and outdoor access points, which have directional antenna technology and adjust to changes in radio frequency. Complainant acquired Ruckus in 2017. Complainant has extensively used and made known its use of the RUCKUS mark in association with a wide range of products and services at least as early as 2005. Complainant has rights in the RUCKUS mark through its registration in the United States in 2013.
Complainant alleges that the disputed domain name is confusingly similar to its RUCKUS mark, as it incorporates the mark in its entirety and merely adds the descriptive terms “buy” and “wireless”, together with the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the disputed domain name, Complainant is not associated with Respondent, and has not authorized, licensed, or otherwise given permission for Respondent to use its mark. There is also no offering of a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name because it resolves to a website that offers gambling services.
According to Complainant, Respondent registered and is using the disputed domain name in bad faith. The disputed domain name is used to disrupt Complainant’s business by diverting customers and offering gambling services for commercial gain. Respondent has engaged in a pattern of bad faith registration and use of domain names. Respondent had actual knowledge of Complainant’s trademark rights in the RUCKUS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark RUCKUS dating back to 2013 and uses it to provide wireless and cloud services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a websites that offers gambling and services. Respondent has engaged in a pattern of bad faith registration and use.
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 disputed domain name incorporates Complainant’s mark in its entirety and merely adds the descriptive terms “buy” and “wireless”, together with the “.com” generic top-level domain (“gTLD”). This does not distinguish the mark from the domain name under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a Respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “wang xian sheng”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name resolves to a website that offers gambling services. Previous Panels have found that this is not a bona fide or legitimate noncommercial or fair use of a disputed domain name. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (Respondent's domain name “resolves to a Chinese-language website advertising games or gambling.); see also Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) or (iii). And the Panel finds that Complainant does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name resolves to a website that offers gambling services. This is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Oki Electric Industry Co., Ltd. v. Elizabeth Dobson, FA 1989201 (Forum May. 2, 2022) (“the Panel determines that the disputed domain name's deceptive redirection of internet users to Respondent’s website, which offers links to online gambling websites, is deliberately designed for Respondent’s commercial gain. Therefore, the Panel finds that the disputed domain name was registered and is being used in bad faith under Policy ¶ 4(b)(iv).”); see also Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent linked the domain name <marssmusic.com>, which is identical to the complainant’s mark, to a gambling website); see also Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”). Thus the Panel finds bad faith use and registration under Policy ¶4(b)(iv).
Further, also as already noted, Complainant provides evidence showing that Respondent has been found to have registered and used domain names in bad faith in several prior UDRP cases. This establishes a pattern of bad faith registration and use under the Policy. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)); see also DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondent’s previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”); see also Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1520008 (Forum Nov. 7, 2013) (respondent’s registration of multiple infringing domain names established a pattern of bad faith registration and use under Policy ¶ 4(b)(ii)). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <buyruckuswireless.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 18, 2022
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