INSIDER, INC. v. ZHENHUA BIN
Claim Number: FA1912001874431
Complainant is INSIDER, INC. (“Complainant”), represented by CitizenHawk, Inc., United States. Respondent is Zhenhua Bin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <businesinsider.com>, registered with Dynadot, LLC.
The undersigned certifies that he 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.
Eugene I. Low as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 9, 2019; the Forum received payment on December 9, 2019.
On December 11, 2019, Dynadot, LLC confirmed by e-mail to the Forum that the <businesinsider.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2020 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@businesinsider.com. Also on December 12, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On January 7, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Eugene I. Low as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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, Insider Inc., is in the business of online media publication. Complainant has rights in the BUSINESS INSIDER mark based upon registration with the United States Patent and Trademark Office (e.g. Reg. No. 4,411,611, registered Oct. 1, 2013). Complainant also has rights in the BUSINESS INSIDER mark based on common law rights stemming from Complainant’s use of the mark in commerce beginning on Feb. 10, 2009. Respondent’s <businesinsider.com>
domain name is identical or confusingly similar to Complainant’s mark because it is simply a misspelling of Complainant’s mark that deletes one letter.
Respondent does not have rights or legitimate interests in the <businesinsider.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect users to a website featuring third-party links.
Respondent registered and uses the <businesinsider.com> domain name in bad faith because Respondent listed the domain name for sale and has a history of bad faith registration. Additionally, Respondent used the disputed domain name to attract users for commercial gain. Finally, Respondent’s use of typosquatting evidences bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 Panel finds that Complainant has satisfied this element.
Complainant claims rights in the BUSINESS INSIDER mark based on its trade mark registrations, e.g. USPTO Reg. No. 4,411,611, registered Oct 1, 2013. Having a valid trade mark registrations is generally sufficient to confer Complainant the requisite rights under this element. While Complainant’s cited trade mark registrations are dated later than the registration date of the disputed domain name (Feb 26, 2009), this is immaterial to the Panel’s determination of this element (this is however relevant to the assessment of the “bad faith” element). In addition, based on Complainant’s materials, the Panel is satisfied that Complainant has also acquired common law rights in the BUSINESS INSIDER mark stemming from Complainant’s use of the mark in commerce.
The Panel accepts Complainant’s argument that Respondent’s <businesinsider.com> domain name is confusingly similar to Complainant’s mark. The disputed domain name resembles a misspelling of the word “business”, and the Panel considers that the difference by a single letter is not sufficient to overcome confusing similarity between the domain name and Complainant’s mark.
The Panel finds that Complainant has satisfied this element.
The Panel is satisfied that Complainant has made out a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), which Respondent fails to overturn.
The Panel accepts Complainant’s contention that Respondent does not have rights or legitimate interests in the <businesinsider.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, based on Complainant’s evidence, Respondent fails to use the disputed domain names in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect users to a website featuring third-party links (one of those links reference “Business Insider”). In the absence of any response from Respondent, the Panel finds that Respondent lacks the requisite rights or legitimate interests under Policy ¶ 4(a)(ii).
The Panel finds that Complainant has satisfied this element.
As discussed under the first element, Complainant’s trade mark registrations are dated later than the registration date of the disputed domain name (Feb 26, 2009). That said, Complainant’s evidence shows that Complainant’s use of the BUSINESS INSIDER mark was earlier than the registration of the disputed domain name, and such use could trace back to 2007. Thus, it is possible that the disputed domain name was registered with knowledge of Complainant’s mark in mind. This, in combination with the various points below, supports the Panel’s findings that the registration and use of the domain name was in bad faith.
Complainant argues that Respondent uses the <businesinsider.com> domain name to attract users for commercial gain. Complainant provides a screenshot of Respondent’s website and argues that the site generated revenue as a click-through website. The Panel notices that one of those links references the name “Business Insider”, which is identical or confusingly similar to Complainant’s mark. In addition, Complainant’s evidence shows that Respondent has been the subject of several bad faith registrations as shown through prior UDRP decisions, and has registered a few other domain names which are suggestive of typosquatting. Finally, Respondent apparently listed the domain name for sale and did offer to sell the domain name to Complainant. All these factors, coupled with Respondent’s apparent lack of legitimate use of the domain name, and in the absence of any response to these proceedings, led the Panel to find in favour of Complainant under this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <businesinsider.com> domain name be TRANSFERRED from Respondent to Complainant.
Eugene I. Low, Panelist
Dated: Jan 8, 2020
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