DECISION

 

Lemon Inc. v. Anas Amin

Claim Number: FA2408002111625

 

PARTIES

Complainant is Lemon Inc. ("Complainant"), represented by Paddy Tam of CSC Digital Brand Services Group AB, Sweden. Respondent is Anas Amin ("Respondent"), Pakistan.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <capcutproapk.org>, registered with OwnRegistrar, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on August 19, 2024; Forum received payment on August 19, 2024.

 

On August 20, 2024, OwnRegistrar, Inc. confirmed by email to Forum that the <capcutproapk.org> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, 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 23, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 12, 2024 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@capcutproapk.org. Also on August 23, 2024, the 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 September 13, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is a subsidiary of ByteDance Ltd., an Internet technology company that provides creative content platforms. Complainant launched a mobile application for video editing under the CAPCUT mark in April 2020. It was the world's ninth-most downloaded mobile app in the first half of 2021, with 140 million downloads. Complainant's website for the app had more than 18 million visitors in August 2023. Complainant owns trademark registrations for CAPCUT in standard character form in the United States, the European Union, and elsewhere.

 

The disputed domain name <capcutproapk.org> was registered in November 2023. The name is registered to Respondent, although Respondent's identity is redacted from the public whois record. The domain name is being used for a website that contains information about Complainant's app and links enabling the user to download what the website represents to be a modified "premium" version of the app. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and is not authorized to use Complainant's mark.

 

Complainant contends on the above grounds that the disputed domain name <capcutproapk.org> is confusingly similar to its CAPCUT 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.

 

FINDINGS

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.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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/; UDRP Perspectives on Recent Jurisprudence, §§ 0.2, 0.8 (updated Aug. 30, 2024), available at https://udrpperspectives.org/; 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").

 

Identical and/or Confusingly Similar

The disputed domain name <capcutproapk.org> incorporates Complainant's registered CAPCUT trademark, adding the generic term "pro," the abbreviation "APK" (Android Package Kit, a file format for mobile applications), and the ".org" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Lemon Inc. v. Tariq Rafique, FA 2111626 (Forum Sept. 10, 2024) (finding <thecapcut.pro> confusingly similar to CAPCUT); Lemon Inc. v. Muhammad Ahmad, FA 2110880 (Forum Sept. 5, 2024) (finding <newcapcutapk.com> confusingly similar to CAPCUT); HDR Global Trading Ltd. v. Asdasd Asd, FA 2037989 (Forum Apr. 29, 2023) (finding <bitmexpro.org> confusingly similar to BITMEX). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

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 a misleading website that attempts to pass off as Complainant and that offers or purports to offer an unauthorized version of Complainant's product. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Lemon Inc. v. Tariq Rafique, supra (finding lack of rights or interests in similar circumstances); Lemon Inc. v. Muhammad Ahmad, 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.

 

Registration and Use in Bad Faith

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 without authorization and is using the domain name for a website that attempts to pass off as Complainant and that offers or purports to offer an unauthorized version of Complainant's product, for what the Panel infers to be Respondent's commercial gain. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Lemon Inc. v. Tariq Rafique, supra (finding bad faith registration and use in similar circumstances); Lemon Inc. v. Muhammad Ahmad, supra (same). The Panel so finds.

 

DECISION

Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <capcutproapk.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

David E. Sorkin, Panelist

Dated: September 13, 2024