ContextLogic Inc. v. Yaroslav Nevskiy
Claim Number: FA2212002022421
Complainant is ContextLogic Inc. (“Complainant”), represented by Caitlin R. Byczko of Barnes & Thornburg LLP, Indiana, USA. Respondent is Yaroslav Nevskiy (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wishelectronic.store>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on December 1, 2022; Forum received payment on December 1, 2022.
On December 1, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <wishelectronic.store> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 December 5, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 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@wishelectronic.store. Also on December 5, 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, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send an email to the Forum, see below.
On December 13, 2022, Complainant sent an email to the Forum, see below.
On December 30, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is the owner and operator of the e-commerce platform WISH offering online retail store services and online marketplace services. As of the date of the Complaint, Complainant has approximately 23 million monthly active users and is one of the most-downloaded and largest mobile shopping applications in the United States. Complainant asserts rights in the WISH mark based upon its registration in the United States in 2013. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain name is confusingly similar to its WISH mark because it contains the mark in its entirety, merely adding the generic term “electronic” and the generic top-level domain (“gTLD”) “.store. Complainant cites UDRP precedents to support its position.
According to Complainant, 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 does not use the disputed domain name for a bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to offer competing goods. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has sought to obtain commercial gain by offering competing goods. Respondent had actual and/or constructive knowledge of Complainant’s rights in the WISH mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states, in pertinent part: “Hello, this domain is locked on our Namecheap account. What actions should be done from our side to resolve the issue?”
C. Additional Submissions
In its email to the Forum, Complainant states, in pertinent part: “We would like the record to reflect that we contacted the Respondent directly on 12/8 and again today [12/13] regarding settlement of this matter but have not yet received a response.”
Complainant has rights in the mark WISH dating back to 2013 and uses it to operate an e-commerce platform.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that offers for sale products that compete with those of Complainant.
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 contains Complainant’s WISH mark in its entirety, merely adding the generic term “electronic” and the generic top-level domain (“gTLD”) “.store. The addition of a generic term and a gTLD is insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). Therefore the Panel finds that the <wishelectronic.store> domain name is confusingly similar to Complainant’s WISH mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s WISH mark and 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 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)). Here, the WHOIS information for the disputed domain name lists the registrant as “Yaroslav Nevskiy”. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website offers for sale products that compete with those of Complainant. Use of a confusingly similar domain name to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site). Accordingly the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent 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, Respondent has sought to obtain commercial gain by offering competing goods. An attempt to use a confusingly similar domain name to attract internet users for commercial gain constitutes bad faith under Policy ¶ 4(b)(iv). See CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wishelectronic.store> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 30, 2022
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