Young PS Acquisitions, LLC v. Yang Zhi Chao
Claim Number: FA2208002007478
Complainant is Young PS Acquisitions, LLC (“Complainant”), represented by Jennifer Mikulina of McDermott Will & Emery LLP, Illinois, USA. Respondent is Yang Zhi Chao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <plaksmacke.com>, registered with eName Technology Co., Ltd..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 8, 2022; the Forum received payment on August 8, 2022.
On August 8, 2022, eName Technology Co., Ltd. confirmed by e-mail to the Forum that the <plaksmacke.com> domain name is registered with eName Technology Co., Ltd. and that Respondent is the current registrant of the name. eName Technology Co., Ltd. has verified that Respondent is bound by the eName Technology Co., Ltd. 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 August 11, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in Chinese, setting a deadline of August 31, 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@plaksmacke.com. Also on August 11, 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 in both English and Chinese.
On September 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, Respondent has received the Notice of Complaint and Commencement Notification in Chinese and has chosen not to respond to the Complaint; the resolving website is in English. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that it manufactures various products, including a market-leading dual-head toothbrush used by professionals in the dentistry field. Complainant has rights in the PLAK SMACKER mark based upon its registration in the United States in 1993.
Complainant alleges that the disputed domain name is confusingly similar to its PLAK SMACKER mark because it consists of a misspelling of the mark (the final “R” is omitted) with the addition of the “.com” generic top level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s PLAK SMACKER mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because the disputed domain resolves to a parked webpage with a variety of competing and unrelated hyperlinks. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has a history of UDRP proceedings, indicating a pattern of bad faith registration. Respondent uses the disputed domain name to disrupt Complainant’s business and to create bad faith attraction for commercial gain. Respondent engages in typosquatting. Respondent had actual and/or constructive knowledge of Complainant’s rights in the PLAK SMACKER mark prior to registering the disputed domain name. Finally, Respondent’s use of the disputed domain name results in opportunistic bad faith. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark PLAK SMACKER and uses it market various products, including a toothbrush used by professionals in the dentistry field.
Complainant’s rights in its mark date back to at least 1993.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent is using the disputed domain name to resolve to parked page that displays advertising links for both unrelated and competing products and services. Respondent has engaged in a pattern of bad faith registration and use of domain names.
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 disputed domain name consists of a misspelling of Complainant’s PLAK SMACKER mark (the final “R” is omitted) with the addition of the “.com” generic top level domain (“gTLD”). Domain names which incorporate the entire mark, even with slight misspellings like the removal of a letter, are usually considered confusingly similar. See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”). Further, deleting spaces and adding a gTLD generally creates no distinction between a complainant’s mark and a disputed domain name under Policy ¶ 4(a)(i). See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). Therefore the Panel find that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy 4 ¶ (c)(ii), WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the guardair.com domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Here, the WHOIS information of record shows that the registrant of the disputed domain is “Yang Zhi Chao”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website is a parked page hosting a variety of hyperlinks, some of which compete with Complainant’s business. Under Policy ¶¶ 4(c)(i) and (iii), past panels have found no bona fide offering of goods or services, nor any legitimate noncommercial or fair use where the disputed domain resolves to a parked webpage. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Forum Apr. 30, 2007) (finding that the use of the disputed domain name to operate a website displaying links to competing goods and services was not 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)); see also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent disrupts Complainant’s business and attracts users for commercial gain, by hosting pay-per-click hyperlinks to both unrelated and competing goods and services. Registration and use of a disputed domain name which is confusingly similar to a complainant’s mark, and using that domain name to host parked, pay-per-click links is evidence of bad faith per Policy ¶¶ 4(b)(iii) and/or (iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent's own commercial gain is evidence of bad faith registration and use pursuant to Policy 4(b)(iv).”); see also Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”); see also Star Management Services, LLC v. Foot Focus Specialties, FA0708001055130 (Forum Oct. 15, 2007) (“Respondent’s previous use of the disputed domain name to operate a website to display hyperlinks to various third-party websites was for Respondent’s own commercial benefit through the accrual of click-through fees. The Panel finds that the <fFootfocus.com> domain name is capable of creating confusion as to Complainant’s source, sponsorship, affiliation or endorsement with the disputed domain name and corresponding website, and therefore finds bad faith registration and use under Policy 4(b)(iv).”). Therefore the Panel finds that Respondent registered and uses the disputed domain in bad faith under Policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent has engaged in a pattern of bad faith registration and use of domain names: Complainant cites numerous cases in which Respondent has been found to have registered and used domain names in bad faith. A history of negative UDRP decisions can be evidence of a pattern of bad faith under Policy ¶ 4(a)(ii). See Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2001001878688 (Forum Feb. 6, 2020) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants). Therefore the Panel finds find bad faith registration and use per policy ¶ 4(b)(ii).
Finally Respondent has engaged in typosquatting: the disputed domain name is a minor misspelling of Complainant’s mark. Typosquatting, or capitalizing on slight misspellings between the disputed domain name and a mark or a complainant’s actual domain name, may be evidence of bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Therefore the Panel finds that Respondent registered and uses the disputed domain in bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <plaksmacke.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 6, 2022
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