West Shore Home, LLC v. Meng Dan Qian
Claim Number: FA2301002028710
Complainant is West Shore Home, LLC ("Complainant"), United States, represented by Charles A. Hooker of Hooker & Habib, P.C., United States. Respondent is Meng Dan Qian ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <westshorehomeonelogin.com>, registered with Chengdu West Dimension Digital Technology Co., Ltd.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on January 23, 2023; Forum received payment on January 23, 2023.
On January 28, 2023, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by email to Forum that the <westshorehomeonelogin.com> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd. 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 February 6, 2023, Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of February 27, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@westshorehomeonelogin.com. Also on February 6, 2023, the Chinese and English language Written Notice of the Complaint, notifying Respondent of the email 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 March 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Panel notes that the Registration Agreement is written in Chinese. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. Complainant requests that the proceeding be conducted in English, asserting that Respondent is capable of understanding English and that both the domain name and the website to which it resolves are in English. In addition, the Panel notes that the Written Notice of the Complaint was served upon Respondent in both English and Chinese; that Respondent has made no objection to Complainant's request that the proceeding be conducted in English; and that Respondent has been a party to many proceedings under the Policy, most or all of which have been conducted in English and involved English-language domain names. See, e.g., Zaxby's Franchising LLC v. Meng Dan Qian, FA 2020326 (Forum Dec. 16, 2022) (ordering transfer of <zaxbysrewards.com>); Morgan Stanley v. Meng Dan Qian, FA 1941239 (Forum May 12, 2021) (ordering transfer of <morganstanleyloanadministration.com>); Securian Financial Group, Inc. v. Meng Dan Qian, FA 1898280 (Forum June 29, 2020) (ordering transfer of <securianretirementceter.com>).
Under the circumstances, the Panel finds it likely that Respondent is conversant in the English language, has received adequate notice of this proceeding, and has chosen not to participate. The Panel sees no reason to require Complainant to bear the burden and expense of arranging for a Chinese translation that is likely unnecessary to afford proper notice to Respondent, and that in any event Respondent is likely to ignore. The Panel decides that English shall be the language of this proceeding.
A. Complainant
Complaint provides home renovation and remodeling services throughout the United States. Complainant has used WEST SHORE and related marks in connection with its services since at least as early as 2007, and states that it advertises extensively under these marks. Complainant owns United States trademark registrations for WEST SHORE in standard character form and WEST SHORE HOME in both standard character and design form. Complainant states that since 2021 it has used a third-party Internet-based service called One Identity LLC to provide employee identity management and online-access management tools through a website at <westshorehome.onelogin.com>.
Respondent registered the disputed domain name <westshorehomeonelogin.com> in December 2022. The domain name currently is being used to display pay-per-click links to competitors of Complainant. Complainant notes the similarity between the disputed domain name and the address used for Complainant's identity management website, and alleges that Respondent registered the domain name in order to obtain confidential information for fraudulent purposes and to disrupt Complainant's business. Complainant states that Respondent has no relationship with Complainant and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <westshorehomeonelogin.com> is confusingly similar to its WEST SHORE HOME mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <westshorehomeonelogin.com> incorporates Complainant's registered WEST SHORE HOME trademark, omitting the spaces and adding the generic terms "one" and "login" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., West Shore Home, LLC v. Zhi Chao Yang, FA 2003080 (Forum Aug. 29, 2022) (finding <westshoreome.com> confusingly similar to WEST SHORE HOME); West Shore Home, LLC v. Zhi Chao Yang, FA 2003079 (Forum Aug. 29, 2022) (finding <westshorehme.com> confusingly similar to WEST SHORE HOME); Bank of America Corp. v. Yan Xiao Lin / Meng Dan Qian, FA 1969956 (Forum Dec. 13, 2021) (finding <bankofamericaonlinelogin.com> confusingly similar to BANK OF AMERICA). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for the sole apparent purpose of displaying pay-per-click links to competitors of Complainant. Such use does not give rise to rise or legitimate interests under the Policy. See, e.g., Zaxby's Franchising LLC v. Meng Dan Qian, supra (finding lack of rights or interests in similar circumstances); West Shore Home, LLC v. Zhi Chao Yang, FA 2003080, supra (same); West Shore Home, LLC v. Zhi Chao Yang, FA 2003079, supra (same); Morgan Stanley v. Meng Dan Qian, supra (same); Securian Financial Group, Inc. v. Meng Dan Qian, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's registered mark and corresponding to a typographical variation on the address used for Complainant's identity management website, and is using the name to display pay-per-click links to competitors of Complainant. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Zaxby's Franchising LLC v. Meng Dan Qian, supra (finding bad faith registration and use in similar circumstances); West Shore Home, LLC v. Zhi Chao Yang, FA 2003080, supra (same); West Shore Home, LLC v. Zhi Chao Yang, FA 2003079, supra (same); Morgan Stanley v. Meng Dan Qian, supra (same); Securian Financial Group, Inc. v. Meng Dan Qian, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <westshorehomeonelogin.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 7, 2023
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