Yahoo Assets LLC v. Lei Fu
Claim Number: FA2206001999305
Complainant is Yahoo Assets LLC (“Complainant”), represented by Joseph Daniels-Salamanca of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Lei Fu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <techcrunch20.com>, registered with DNSPod, Inc..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 6, 2022; the Forum received payment on June 6, 2022.
On June 8, 2022, DNSPod, Inc. confirmed by e-mail to the Forum that the <techcrunch20.com> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, 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 June 10, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of June 30, 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@techcrunch20.com. Also on June 10, 2022, the Chinese and English language 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 July 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Notwithstanding that the Registration Agreement is written in Chinese, 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 including Respondent’s failure to respond, the Panel finds that the proceeding should be in English.
A. Complainant
Complainant contends as follows:
Complainant, Yahoo Assets LLC, owns and uses the TECHCRUNCH mark in connection with conferences and seminars in various fields such as technology and finance.
Complainant has rights in the TECHCRUNCH mark through its registration with multiple trademark agencies including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <techcrunch20.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the entirety of the TECHCRUNCH mark with the addition of the number “20” and the “.com” generic top-level domain (“gTLD”) to form the disputed domain name.
Respondent lacks rights and legitimate interests in the <techcrunch20.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its TECHCRUNCH mark in the disputed domain name. Respondent does not use the domain name in connection with any bona fide offering of goods or services, nor a legitimate non-commercial or fair use. Instead, Respondent uses the at-issue domain name to impersonate Complainant in order to phish for user’s valuable personal and payment information.
Respondent registered and uses the <techcrunch20.com> domain name in bad faith. First, Respondent uses the confusingly similar domain name’s resolving webpage to pass off as Complainant. Moreover, Respondent uses the at-issue domain name to perpetuate a phishing scheme and divert traffic meant for Complainant. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TECHCRUNCH mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TECHCRUNCH trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the TECHCRUNCH trademark.
Respondent uses the at-issue domain name to impersonate Complainant and divert internet users to a website promoting Complainant’s annual conference event so that it can defraud third-parties.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration along with multiple other national trademark registrations for its TECHCRUNCH trademark. Any of such registrations is sufficient to demonstrate Complainant’s rights in the AGILENT mark under Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
Respondent’s <techcrunch20.com>domain name consists of Complainant’s entire TECHCRUNCH trademark followed by the number “20” with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel concludes that Respondent’s <techcrunch20.com> domain name is confusingly similar to TECHCRUNCH pursuant to Policy ¶ 4(a)(i). See Am. Online Inc. v. Chinese ICQ Network, D2000-0808 (WIPO Aug. 31, 2000) (finding that the addition of the numeral 4 in the domain name <4icq.com> does nothing to deflect the impact on the viewer of the mark ICQ and is therefore confusingly similar);see also, Longo Brothers Fruit Markets Inc. v. John Obeye / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM, FA 1734634 (Forum July 17, 2017) (“[O]f course it is well established in prior UDRP cases that the addition of a ‘.com’ suffix is irrelevant when determining if a disputed domain name is identical or confusingly similar to a trademark.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “Lei Fu” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <techcrunch20.com> domain name or by TECHCRUNCH. The Panel therefore concludes that Respondent is not commonly known by <techcrunch20.com> for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, 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).
Respondent’s uses the at-issue domain name to pass itself off as Complainant and to defraud third parties. To wit, Respondent uses the domain name and its reference website to deceptively extract personal data, including financial data, from third-party internet users. Using the at-issue domain name to impersonate Complainant in furtherance of fraud shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (defining “phishing” as “the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit card numbers, passwords, social security numbers and other personal information that may be used for fraudulent purposes”); see also, Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004) (concluding that using a domain name to redirect internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith under Policy ¶ 4(a)(iii).
Respondent is using the at-issue domain name to impersonate Complainant. Here, Respondent’s <techcrunch20.com> domain name misdirects traffic to a website that mimics what might be Complainant’s own website in an effort to create a false impression of association with the complainant. Such use indicates Respondent’s bad faith registration and use of the domain name under Policy ¶ 4(b)(iv). See The Prudential Insurance Company of America v. Henrique Bryan Souza / DATAMIX ENSINO DE INFORMATICA, FA 1718308 (Forum Apr. 3, 2017) (finding bad faith where the respondent used the disputed domain name to resolve to a website upon which the respondent imitated the complainant’s mark, logo, and color scheme to create a “strikingly similar” website).
Additionally, Complainant shows that Respondent is using the at-issue domain name to perpetuate a phishing scheme where Respondent seeks to defraud third-parties into divulging private data, including financial information, to Respondent. Respondent also aims to trick such third-party internet users into making payments to Respondent by instilling in such internet users the false belief that they are paying for registration for Complainant’s annual conference when instead they are actually remitting their payments to Respondent. Respondent’s swindling of third-parties further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
Moreover, Respondent registered the at-issue domain name knowing that Complainant had trademark rights in the TECHCRUNCH trademark. Respondent’s prior knowledge is evident given TECHCRUNCH notoriety and given Respondent’s use of <techcrunch20.com> and its referenced website to pass itself off as Complainant in furtherance of fraud as mentioned elsewhere herein. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used <techcrunch20.com> in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <techcrunch20.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 11, 2022
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