Coupang Corporation v. mengjianhua
Claim Number: FA2002001883964
Complainant is Coupang Corporation (“Complainant”), represented by B. Brett Heavner of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., District of Columbia, USA. Respondent is mengjianhua (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coupang-global.com>, registered with Xin Net Technology Corporation.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 20, 2020; the Forum received payment on February 20, 2020.
On February 23, 2020, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <coupang-global.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 16, 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@coupang-global.com. Also on February 24, 2020, 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 March 20, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed 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.
Preliminary Issue: Language of Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering all the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
Complainant made the following contentions.
Complainant, Coupang Corporation, is one of the largest and fastest-growing online retail shopping companies in the world. Complainant has rights in the COUPANG mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,173,689 registered on April 4, 2017). See Compl. Ex. 14. Respondent’s <coupang-global.com> domain name is confusingly similar to Complainant’s COUPANG mark as it includes the mark in its entirety, adds a hyphen, the generic term “global,” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <coupang-global.com> domain name. Respondent is not authorized to use the Complainant’s mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s disputed domain name redirects users to a webpage for online gambling and gaming.
Respondent registered and uses the <coupang-global.com> domain name in bad faith. Specifically, Respondent disrupts Complainant’s business by redirecting Internet users to an online gambling and gaming service unrelated to Complainant. Further, Respondent uses the disputed domain name to intentionally attract Internet users to its online gambling services by creating a likelihood of confusion as to Respondent’s affiliation with Complainant. Finally, Respondent had actual knowledge of Complainant’s rights in the COUPANG mark prior to its registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a Korean company that is one of the largest and fastest-growing online retail shopping companies in the world.
2. Complainant has established its trademark rights in the COUPANG mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,173,689 registered on April 4, 2017).
3. Respondent registered the disputed domain name on July 13, 2019.
4. Respondent has caused the disputed domain name to redirect users to a webpage for online gambling and gaming.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the COUPANG mark through its registration of the mark with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides copies of its registration of the COUPANG mark with the USPTO. (e.g. Reg. No. 5,173,689 registered on April 4, 2017). See Compl. Ex. 14. Accordingly, the Panel finds that Complainant has established rights in the COUPANG mark for the purposes of Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s COUPANG mark. Complainant argues that Respondent’s <coupang-global.com> domain name is confusingly similar to Complainant’s COUPANG mark as it includes the mark in its entirety, adding a hyphen, the generic term “global,” and the “.com” gTLD. Addition of a hyphen, a generic term, and a gTLD do not distinguish a domain name for purposes of Policy ¶ 4(a)(i). See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”). The Panel therefore finds that the disputed domain name is identical and/or confusingly similar to the COUPANG mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
Rights and Legitimate Interests
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s COUPANG trademark and to use it in its domain name, adding the generic word “global” which does not negate the confusing similarity between the domain name and the trademark;
(b) Respondent registered the disputed domain name on July 13, 2019;
(c) Respondent has caused the disputed domain name to redirect users to a webpage for online gambling and gaming;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends Respondent lacks rights or legitimate interests in the <coupang-global.com> domain name. Specifically, Complainant argues that Respondent is not commonly known by the disputed domain name and Respondent is not a licensee or authorized to use Complainant’s COUPANG mark. Where a response is absent, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “mengjianhua,” and there is no other evidence to suggest that Respondent was authorized to use the COUPANG mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per ¶ 4(c)(ii);
(f) Complainant argues Respondent fails to use the <coupang-global.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent’s disputed domain name redirects Internet users to a webpage with online gambling services unrelated to Complainant. A respondent’s use of a disputed domain name to redirect Internet users to an unrelated webpage may not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”); see also Wells Fargo & Co. v. Nadim, FA 127720 (Forum Nov. 29, 2002) (finding that the respondent’s use of the complainant’s WELLS FARGO mark to redirect Internet users to a domain name featuring magazine subscriptions was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name). Complainant provides screenshots of Respondent’s disputed domain name, which purportedly redirects Internet users to a webpage with games and gambling services, which are unrelated to Complainant’s online shopping services. See Compl. Ex. 16. Therefore, the Panel finds that Respondent’s use of the disputed domain does not constitute 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).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
Secondly, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the COUPANG mark at the time of registration of the <coupang-global.com> domain name. Actual knowledge is sufficient and may be proven through a totality of circumstances per Policy ¶ 4(a)(iii). See 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 AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). Complainant argues that Respondent’s actual knowledge of Complainant’s rights in the COUPANG mark is demonstrated by Respondent’s registration of a confusingly similar domain name using the famous COUPANG mark. Therefore, the Panel finds Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Thirdly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the COUPANG mark and in view of the conduct that Respondent has engaged in when using the disputed domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coupang-global.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: March 21, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page