Arris Enterprises LLC v. YangZhiChao
Claim Number: FA2204001990811
Complainant is Arris Enterprises LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is YangZhiChao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ruckuswireess.com>, (‘the Domain Name’) registered with 22net, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 4, 2022; the Forum received payment on April 4, 2022.
On April 6, 2022, 22net, Inc. confirmed by e-mail to the Forum that the <ruckuswireess.com> Domain Name is registered with 22net, Inc. and that Respondent is the current registrant of the name. 22net, Inc. has verified that Respondent is bound by the 22net, 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 April 7, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2022 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@ruckuswireess.com. Also on April 7, 2022, 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 May 4, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant is the owner of its wholly owned subsidiary Ruckus Wireless Inc which owns the mark RUCKUS registered, inter alia, in the USA for communication products and services with first use recorded as 2005. It operates a web site at ruckuswireless.com.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark adding a misspelling of the generic term ‘wireless’ (omitting the letter ‘l’) and the gTLD “.com”. It reflects the Complainant’s url at ruckuswireless.com merely omitting the letter ‘l’.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for competing commercial pay per click links. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith. The Domain Name is a typosquatting registration. Typosquatting is bad faith per se. The Respondent is a cybersquatter registering domain names taking advantage of the trademarks of third parties and has been the subject of a number of adverse decisions under the UDRP including for typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of its wholly owned subsidiary Ruckus Wireless Inc. which owns the mark RUCKUS registered, inter alia, in the USA for communication products and services with first use recorded as 2005. It operates a web site at ruckuswireless.com.
The Domain Name registered in 2022 has been used for competing pay per click links. The Respondent is a cybersquatter registering domain names taking advantage of the trademarks of third parties and has been the subject of a number of adverse decisions under the UDRP including for typosquatting.
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 Domain Name in this Complaint combines the Complainant’s RUCKUS mark (registered in the USA for communication products and services with first use recorded as 2005) with the generic term ‘wireless’ spelt incorrectly as ‘wireess’ and the gTLD “.com”.
The addition of the generic word ‘wireless’ spelt incorrectly does not serve to prevent confusing similarity between the Domain Name and the Complainant’s mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).).
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. 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).
It is clear from the evidence that the Respondent has used the site attached to the domain name to link to businesses competing with the Complainant through pay per link links. The usage of the Complainant’s mark which has a reputation in relation to communication products and services for competing products and services not connected with the Complainant is not fair and the page attached to the Domain Name does not make it clear that there is no commercial connection with the Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v. domain admin / private registrations aktien Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
Also the Domain Name differs by one letter ‘l’ from the Complainant’s url ruckuswireless.com and appears to be a typosquatting registration. Typosquatting is an indication of a lack of rights or legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (Taking advantage of Internet users’ errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
The Respondent has not answered this Complaint or explained why its registration and use of the Domain Name is legitimate.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Respondent is using the Domain Name to point to pay per click links to make profit from promoting competing products and services not associated with the Complainant in a disruptive and confusing manner. Accordingly and additionally, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his competing website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site and products and services offered on it disrupting the Complainant’s business. See Capital One Financial Corp v. DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum June 4, 2015).
Finally the Respondent has registered domain names containing the trademarks of others and has been the subject of a number of adverse decisions under the UDRP showing a pattern of cybersquatting activity indicative of repeated bad faith registration and use of domain names. See Maurice Sporting Goods, Inc. v. Xiaodong Peng, FA1506001625928 (Forum Aug. 1, 2015).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ruckuswireess.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 4, 2022
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