DECISION
Walmart Apollo, LLC v. an gang / chen li li / chen bing hui / diao shi ran / bai ling / chen yun xun / cao fang liang
Claim Number: FA2409002115409
PARTIES
Complainant is Walmart Apollo, LLC ("Complainant"), represented by Fatima Y. Kassem of Brooks Kushman P.C., Michigan, USA. Respondent is an gang / chen li li / chen bing hui / diao shi ran / bai ling / chen yun xun / cao fang liang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <ozarktrailshop.com>, <ozarktrailtentss.cc>, <ozarktrailshop.net>, <ozarktrailoutdoor.cc>, <ozarktrail.cc>, <ozarkcamping.cc>, <ozarktrailwebsite.com>, <ozarktrails.cc>, <ozarktrailtent.com>, <ozarktrailtents.com>, <ozarktrailshops.com>, <ozarktrailoutdoor.com>, <ozarktrailoutdoors.cc>, <ozarktrailchair.cc>, <ozarktrailwebsite.cc>, <ozarktrailbackpack.com>, <ozarktrailbrand.com>, <ozarktrailbrand.cc>, <ozarktrailshoping.cc>, <ozarktrailstore.com> and <ozarktrailshop.vip> ("the Domain Names"), registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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.
Alan L. Limbury, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on September 13, 2024. Forum received payment on September 13, 2024.
On September 13, 2024, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to Forum that the Domain Names are registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the names. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) registration agreement, which is in Chinese, 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 September 17, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of October 7, 2024 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registrations as technical, administrative, and billing contacts, and to postmaster@ozarktrailshop.com, postmaster@ozarktrailtentss.cc, postmaster@ozarktrailshop.net, postmaster@ozarktrailoutdoor.cc, postmaster@ozarktrail.cc, postmaster@ozarkcamping.cc, postmaster@ozarktrailwebsite.com, postmaster@ozarktrails.cc, postmaster@ozarktrailtent.com, postmaster@ozarktrailtents.com, postmaster@ozarktrailshops.com, postmaster@ozarktrailoutdoor.com, postmaster@ozarktrailoutdoors.cc, postmaster@ozarktrailchair.cc, postmaster@ozarktrailwebsite.cc, postmaster@ozarktrailbackpack.com, postmaster@ozarktrailbrand.com, postmaster@ozarktrailbrand.cc, postmaster@ozarktrailshoping.cc, postmaster@ozarktrailstore.com, postmaster@ozarktrailshop.vip. Also on September 17, 2024, the Chinese and English 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 registrations as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default in Chinese and English.
On October 8, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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 Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Paragraph 3(c) of 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". Paragraph 1(d) of the Forum's Supplemental Rules defines "The Holder of a Domain Name Registration" as "the single person or entity listed in the registration information, as verified by the Registrar, at the time of commencement" and sub-paragraph 1(d)(i) provides that a Complainant wishing to make an argument for a single Respondent having multiple aliases must comply with Supplemental Rules 4(c) and 17(a)(i).
Complainant submits that the entities that control the Domain Names are effectively controlled by the same person and/or entity, which is operating under aliases. The WHOIS details for the Domain Names all share the same Registrar and show a common location, namely China. The Domain Names use the same generic Top Level Domains ("gTLDs") or country code Top Level Domains ("ccTLDs"). The resolving websites from the Domain Names are essentially identical and indistinguishable and advertise and purport to offer the same selection of products from Complainant's OZARK TRAIL brand for tents and camping-related goods. The language displayed in the Privacy Policy and Conditions of Use are identical.
Complainant has shown that the Domain Names are effectively controlled by the same person and/or entity, which is operating under several aliases. Hence this decision refers to an gang / chen li li / chen bing hui / diao shi ran / bai ling / chen yun xun / cao fang liang as "Respondent".
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
As noted, the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding in relation to the Domain Names shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, noting that the Domain Names are in English, resolve to English language websites and target a United States-based audience. Complainant is based in the United States, conducts its business in English, and is not conversant or proficient in Chinese. Requiring Complainant to submit a Chinese-language complaint would likely cause delay to the proceeding and unnecessarily financially burden Complainant without any benefit to Respondent.
In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese and English language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
PARTIES' CONTENTIONS
A. Complainant
Founded in 1962, Complainant Walmart Apollo, LLC, is a multinational retail corporation operating a chain of hypermarkets, discount department stores and grocery stores. Since 1985, in connection with a wide range of products designed for camping and hiking enthusiasts, it has used the OZARK TRAIL mark, in which it has rights based upon numerous registrations, including with the United States Patent and Trademark Office (USPTO). Respondent's Domain Names are identical or confusingly similar to Complainant's mark.
Respondent has no rights or legitimate interests in the Domain Names. It is not affiliated with Complainant and Complainant has not authorized or licensed Respondent to use its mark. Respondent is not using the Domain Names in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use but instead is using them to impersonate and compete with Complainant and to engage in phishing. Respondent is not commonly known by the Domain Names.
Respondent registered the Domain Names in bad faith with actual knowledge of Complainant's rights in the OZARK TRAIL mark and uses them in bad faith to pass itself off as Complainant by attracting for commercial gain Internet users to websites which feature numerous elements directly copied from Complainant's website at "www.walmart.com".
Upon information and belief, Respondents in this case are the same as those identified in Walmart Apollo, LLC v. chen li li / chen bing hui, FA2402002086272 (Forum April 1, 2024).
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant has established all the elements entitling it to relief.
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 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").
Identical and/or Confusingly Similar
Complainant has shown that it has rights in the OZARK TRAIL mark through numerous registrations, including with the USPTO (e.g., Reg. No. 1,922,173, registered on September 26, 1995).
It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.7.
The Panel finds each of Respondent's <ozarktrailshop.com>, <ozarktrailtentss.cc>, <ozarktrailshop.net>, <ozarktrailoutdoor.cc>, <ozarktrail.cc>, <ozarkcamping.cc>, <ozarktrailwebsite.com>, <ozarktrails.cc>, <ozarktrailtent.com>, <ozarktrailtents.com>, <ozarktrailshops.com>, <ozarktrailoutdoor.com>, <ozarktrailoutdoors.cc>, <ozarktrailchair.cc>, <ozarktrailwebsite.cc>, <ozarktrailbackpack.com>, <ozarktrailbrand.com>, <ozarktrailbrand.cc>, <ozarktrailshoping.cc>, <ozarktrailstore.com> and <ozarktrailshop.vip> Domain Names to be confusingly similar to Complainant's OZARK TRAIL mark, only differing by the omission of the space and the addition to the mark of the generic words "shop(s)", "tent(s)(s)", "outdoor(s)", "camping", "website", "chair", "backpack", "brand", "shoping" and "store", none of which distinguishes any of the Domain Names from the mark. The inconsequential ".com", ".net" and ".vip" generic gTLDs and the ".cc" ccTLD may be ignored. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Complainant has established this element.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the Domain Names for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the Domain Names or names corresponding to the Domain Names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the Domain Names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
All the Domain Names resolve to very similar websites which prominently display Complainant's OZARK TRAIL mark at the top of the page and offer heavily discounted OZARK TRAIL branded outdoor equipment and camping gear, using images identical to those on Complainant's "www.walmart.com" website and seeking Internet users' personal information to login or create an account.
These circumstances, together with Complainant's assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the Domain Names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the Domain Names.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the Domain Names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the Domain Names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant's OZARK TRAIL mark when Respondent registered the Domain Names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's websites, by creating a likelihood of confusion with Complainant's mark as to the source of Respondent's websites and of the goods promoted on those websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Further, the Panel finds Respondent used the Domain Names in bad faith by phishing for Internet users' personal information while impersonating Complainant.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ozarktrailshop.com>, <ozarktrailtentss.cc>, <ozarktrailshop.net>, <ozarktrailoutdoor.cc>, <ozarktrail.cc>, <ozarkcamping.cc>, <ozarktrailwebsite.com>, <ozarktrails.cc>, <ozarktrailtent.com>, <ozarktrailtents.com>, <ozarktrailshops.com>, <ozarktrailoutdoor.com>, <ozarktrailoutdoors.cc>, <ozarktrailchair.cc>, <ozarktrailwebsite.cc>, <ozarktrailbackpack.com>, <ozarktrailbrand.com>, <ozarktrailbrand.cc>, <ozarktrailshoping.cc>, <ozarktrailstore.com> and <ozarktrailshop.vip> Domain Names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: October 10, 2024
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