Law School Admission Council, Inc. v. li xiangguo
Claim Number: FA2208002008868
Complainant is Law School Admission Council, Inc. (“Complainant”), represented by Wendy K. Marsh of Nyemaster Goode, P.C., Iowa, USA. Respondent is li xiangguo (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lsatexam.com>, registered with MAT BAO 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 18, 2022; the Forum received payment on August 18, 2022.
On August 21, 2022, MAT BAO CORPORATION confirmed by e-mail to the Forum that the <lsatexam.com> domain name is registered with MAT BAO CORPORATION and that Respondent is the current registrant of the name. MAT BAO CORPORATION has verified that Respondent is bound by the MAT BAO 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 August 23, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 12, 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@lsatexam.com. Also on August 23, 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 September 20, 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.
A. Complainant
Complainant states that it is a not-for-profit organization that provides products and services that support candidates and schools throughout the law school admission process with innovative solutions to expand and diversify the range of prelaw students, enhance student outcomes in law school, and support legal professionals throughout their careers. Complainant’s goods and services include the well known Law School Admission Test (LSAT) which is an integral part of law school admission in the United States, Canada, and many other countries. The LSAT is the only standardized exam accepted by all ABA-accredited law schools in the United States. Each year, over 100,000 potential law school applicants worldwide take the LSAT exam. Complainant has rights in the LSAT mark based upon its registration in the United States in 2009.
Complainant alleges that the disputed domain name is confusingly similar to its LSAT mark because it incorporates the mark in its entirety and merely adds the descriptive term “exam” and the “.com” generic top level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s LSAT mark. Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as Respondent hosts and advertises adult-oriented material at the resolving website.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent uses it to create bad faith attraction for commercial gain. In addition, Respondent had knowledge of Complainant’s rights in the LSAT mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark LSAT dating back to 2009 and uses it to provide a law school entrance examination.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays and advertises adult-oriented material.
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 incorporates Complainant’s LSAT mark in its entirety and merely adds the descriptive term “exam” and the “.com” generic top level domain (“gTLD”). This is not sufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Kohler Co. v. Curley, FA 890812 (Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”). Therefore the Panel finds 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. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record shows that the registrant of the disputed domain name as “li xiangguo”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website displays and advertises adult-oriented material. Using a confusingly similar domain name to host adult-oriented material and/or to promote products or services not related to a complainant is not a bona fide offering of goods and services or legitimate noncommercial or fair use for purposes of Policy ¶¶ 4(c)(i) or (iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods and services or legitimate noncommercial or fair use for purposes of 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 uses the disputed domain name to advertise adult-oriented material which is not related to Complainant’s business. This is evidence of bad faith per Policy ¶ 4(b)(iv). See also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Therefore the Panel finds that Respondent registered and uses the disputed domain in bad faith under Policy ¶ 4(b)(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 <lsatexam.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 20, 2022
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