Woot LLC v. VASILACHI IULIANA / Chen Li / ? ??
Claim Number: FA2212002023936
Complainant is Woot LLC (“Complainant”), represented by David J. Diamond of Richard Law Group, Inc., Texas. Respondent is VASILACHI IULIANA / Chen Li / ? ?? (“Respondent”), SG.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <woot28.com>, <woot95.com>, <wootak.com>, <wootcc.com>, and <wootgt.com>, registered with GoDaddy.com, LLC.
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 December 14, 2022; Forum received payment on December 14, 2022.
On December 15, 2022; Dec 16, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <woot28.com>, <woot95.com>, <wootak.com>, <wootcc.com>, and <wootgt.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 19, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2023 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@woot28.com, postmaster@woot95.com, postmaster@wootak.com, postmaster@wootcc.com, postmaster@wootgt.com. Also on December 19, 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.
On January 12, 2023, 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, since its launch in 2004, it has been a pioneer of the one-deal-a-day business model and it has offered online retail services via the domain name <woot.com> and under the trademark WOOT. Through longstanding use and substantial commercial success, including Complainant’s recognition by Inc. magazine in 2008 as No. 1 among the “Top 100 Retail Companies” of the fastest growing private companies in America followed by its highly publicized acquisition by Amazon.com in 2010, consumers have come to recognize the WOOT mark as indication of high quality, fun retail services. Complainant asserts rights in the WOOT mark based upon its registration in the United States in 2005. The mark is famous.
Complainant alleges that the disputed domain names are confusingly similar to its WOOT trademark because they incorporate the mark in its entirety and merely add the numbers “28” and “95”, the letters “AK”, “CC”, and “GT”, and the generic top-level domain name (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not licensed or authorized to use Complainant’s WOOT mark nor is Respondent commonly known by the disputed domain names. Respondent does not use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant in furtherance of a phishing scheme. Specifically, the disputed domain names resolve to the exact same website as other domain names incorporating Complainant’s WOOT Mark for which the Panel in Woot LLC v. 猩猩, FA2208002007177 (Forum Sept. 6, 2022) found no legitimate interest and bad faith registration and use under the Policy ; upon receiving the clear decision in Woot LLC v. 猩猩, Respondent migrated the infringing website to new domains and/or continued the infringing website at existing domains not included within the scope of the prior UDRP, where Respondent continues to impersonate Complainant and to deceive unsuspecting third parties into disclosing personal and financial information in a phishing scheme and/or perpetrating fraud through a sham purchasing scheme: each of the disputed domain names resolves to identical websites that display Complainant’s distinctive logo in the browser tab as a favicon and on the sites’ “Account” login page. The resolving websites display information pertaining to a commission scheme and identify “partners” that include not only Complainant’s parent Amazon, but also unrelated third-party retailers, presumably in furtherance of commercial benefit derived from these parties. Respondent’s use of Complainant’s WOOT marks to promote competing third-party retail services is not a legitimate use under the Policy. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Respondent has demonstrated a pattern of bad faith registration and use. Respondent’s offerings of competing hyperlinks disrupts Complainant’s business. Respondent attempts to pass off as Complainant in furtherance of a phishing scheme. Respondent had actual knowledge of Complainant’s mark. Respondent registered the disputed domain names in bad faith by using a privacy shield. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Panel finds that the domain names are under common control as the websites displayed at these domains are identical, as are the registrar, hosting service, and privacy shield. This is sufficient to find that the domain names were registered by the same domain name holder. See The Valspar Corporation v. Zhou Zhiliang / zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA100800133934 (Forum Sept. 28, 2010); see also BBY Solutions, Inc. v. White Apple / Dev Kumar, FA1805001787251 (Forum June 20, 2018).
Consequently, the Panel will rule on all the contested domain names, and the registrants are collectively referred to as “Respondent”.
Complainant owns the mark WOOT and uses it to provide online retail services.
Complainant’s rights in its mark date back to at least 2005.
The disputed domain names were registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to pass off as Complainant to conduct a phishing scheme; the resolving website hosts links to third party websites some of which compete directly with Complainant; the resolving websites display Complainant’s marks and logo; the WHOIS information is incorrect.
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 names incorporate Complainant’s WOOT mark in its entirety and merely add the numbers “28” and “95”, the letters “AK”, “CC”, and “GT”, and the generic top-level domain name (“gTLD”) “.com”. The addition of numbers, letters, or gTLDs in domain names do not suffice to avoid a finding of confusing similarity 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 Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also, Woot v. 猩猩, FA2208002007177 (Forum Sept. 6, 2022) (“The Panel notes that the disputed domain names incorporate Complainant's WOOT mark in their entireties and add numbers 11, 12, 13, 15, 16, 18, 19, 26, 33, 55, 58, 63, 66, 77, 87, 88 and 99 respectively. Therefore, the Panel finds that each of the disputed domain names is confusingly similar to Complainant's mark per Policy ¶ 4(a)(i)”); see also Woot LLC v. 王鹏, FA2210002014580 (Forum Nov. 16, 2022) (finding the disputed domains <wootjp.com> and <wootyoiu.com>, which add the letters “jp” and “yoiu” to Complainant’s WOOT trademark, to be confusingly similar under the Policy); see also President and Fellows of Harvard College v. Malo, (Forum Dec. 16, 2018) (“Adding . . . arbitrary letters such as 'bd' do not distinguish a domain name from a complainant's mark.”). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s WOOT 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 “VASILACHI IULIANA / Chen Li / ? ??”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Complainant presents evidence showing that Respondent attempts to pass off as Complainant in furtherance of a phishing scheme: the resolving websites display Complainant’s mark and distinctive logo on a login page that invites users to enter personal information. Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the disputed domain names pursuant to Policy ¶ 4(c)(iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Thus the Panel finds that Respondent fails to use the disputed domain names to make 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).
Further, the resolving websites host hyperlinks that compete with Complainant’s business. Using a confusingly similar domain name to divert Internet users to competing websites does not represent 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 ALPITOUR S.p.A. v. Albloushi, FA 888651 (Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)). Therefore, on this ground also, the Panel find that Respondent fails to use the disputed domain names to make 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).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
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 names.
Indeed, as already noted, Respondent uses the disputed domain names to attempt to pass off as Complainant in furtherance of a phishing scheme. Passing off as a complainant in furtherance of a phishing scheme evidences bad faith pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). Thus the Panel finds bad faith registration and use per Policy ¶ 4(a)(iii).
Further, also as already noted, the resolving websites display links to Complainant’s competitors. Respondent’s hosting of links to complainant’s competitors demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). Thus the Panel find bad faith registration use per Policy ¶ 4(b)(iii).
Further, Respondent has engaged in a pattern of bad faith registration by registering multiple domain names in the instant case. Registration of multiple infringing domain names indicates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Deutsche Telekom AG v. Dana Dudones, FA 1798440 (Forum Sep. 7, 2018) (“Here the same registrant registered the seven disputed domain names over a two-day period [. . .] Thus the Panel finds that Respondent’s registration of multiple domain names in the present case evinces bad faith registration under Policy ¶ 4(b)(ii).”). Therefore the Panel finds bad faith registration and use per Policy ¶ 4(b)(ii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving websites display Complainant’s mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii) on this ground also.
Finally, the WHOIS information is manifestly incorrect, since the name and address of one of the registrants is merely “??”. Providing incorrect WHOIS information can evince bad faith registration and use under Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”); see also ABB Asea Brown Boveri Ltd v. Global Mgr, FA 1702001716963 (NAF Mar. 30, 2017) (“Complainant contends that Respondent provided false contact information while registering the disputed domain. Registering a confusingly similar domain name using false contact information can evince bad faith registration.”); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. Vijay S Kumar/Strategic Outsourcing Services Pvt Ltd, FA 1411001647718 (NAF Jan. 4, 2016) (“False or misleading contact information indicates bad faith registration and use.”); see also Chevron Intellectual Property LLC v. Phillip Thomas/Chevron Pacific, FA 1504001615524 (NAF May 29, 2015) (“Complainant’s use of false registration data and its unexplained redirection of the disputed domain name to Complainant’s own website are further indications of such bad faith.”); see also McDonald’s Corp. v. Holy See, FA 0304000155458 (NAF June 27, 2003) (“The Panel finds that Respondent provided false contact information in the registration certificates and that such actions, even though not specifically enumerated in the Policy, may form the basis for a finding of bad faith registration and use.”); see also Mars, Incorporated v. RaveClub Berlin, FA 0106000097361 (NAF July 16, 2001) (providing false registration and contact information for infringing domain names evidenced Respondent’s bad faith). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii) on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <woot28.com>, <woot95.com>, <wootak.com>, <wootcc.com>, and <wootgt.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 13, 2023
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