Global Village Publishing, Inc. v. chenwen
Claim Number: FA1303001489761
Complainant is Global Village Publishing, Inc. (“Complainant”), represented by Jeremy S. Friedberg of Leitess Friedberg PC, Maryland, USA. Respondent is chenwen (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gvp.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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 13, 2013; the National Arbitration Forum received payment on March 13, 2013. The Complaint was submitted in both Chinese and English.
On March 14, 2013, eName Technology Co., Ltd. confirmed by e-mail to the National Arbitration Forum that the <gvp.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 March 25, 2013, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of April 15, 2013 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@gvp.com. Also on March 25, 2013, the Chinese 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 24, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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.
Language of the Proceedings
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Global Village Publishing, Inc. who list its address as Alexandria, VA, USA. Complainant has for many years been engaged in the field of electronic book publishing.
Respondent is Chenwen who lists its address as CN Anhui Chizhoushi, China. Respondent’s registrar’s address is listed as Sotware Park, Xiamen fujuan, China.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims rights in the GVPI mark pursuant to its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,917,145 registered Jan. 11, 2005). See Complainant Annex 4. The Panel notes that previous panels have found that a complainant’s registration of a mark with the USPTO is sufficient to confer rights in the mark under Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”). Further, the Panel notes that past panels have found that a complainant need not register its mark in the country of a respondent to demonstrate rights in the mark. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel finds that Complainant has established rights under Policy ¶ 4(a)(i) in the GVPI mark.
Complainant makes no specific claims of confusing similarity, other than noting that it previously owned the <gvp.com> domain name for its own business. The Panel notes, however, that the disputed domain name merely removes the letter “I” from Complainant’s GVPI mark, and that past panels have found the deletion of a single letter insufficient in distinguishing a domain name from a mark. See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”). The Panel finds that Respondent’s <gvp.com> domain name is confusingly similar to Complainant’s GVPI mark for the purposes of Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes 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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant makes no contention that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). The Panel does note, however, that the WHOIS record for the <gvp.com> lists “chenwen” as the registrant, and that absent any other evidence from a respondent, past panels have found nominally unsupportive WHOIS information to be strong evidence that a respondent is not commonly known by a disputed domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). The Panel finds that Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Complainant claims that Respondent hacked Complainant’s account with GoDaddy.com, the previous domain name registrar, and transferred the <gvp.com> domain name to Respondent without Complainant’s consent. Because the domain name is now hosted by a different registrar, GoDaddy.com was unable to assist Complainant in retrieving its stolen domain name. The Panel notes that past panels have found that hacking into a complainant’s account is evidence that a respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and 4(c)(iii). See Ric Jo Swaningson v. thu lins, FA 1234365 (Nat. Arb. Forum July 1, 2009) (finding that the respondent’s fraudulent action of hacking into the complainant’s account was evidence that the respondent did not use the disputed domain name for a bona fide or legitimate use). The Panel finds that Respondent has not established rights or legitimate interests under Policy ¶¶ 4(c)(i) and 4(c)(iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant alleges that Respondent is using the disputed domain name to cause confusion with Complainant’s brand, by making Internet users falsely believe Respondent is offering services related to Complainant. Complainant also claims that Respondent is profiting from its use of the disputed domain name. Respondent’s engagement in activity that is indeed confusing consumers for commercial gain is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). The Panel finds that Respondent is diverting users to its site for commercial gain, and that such behavior constitutes registration and use of the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant claims that on December 14, 2012, Respondent hacked into Complainant’s GoDaddy.com account and fraudulently transferred the <gvp.com> domain name to Respondent. The Panel notes that past panels have found a transfer initiated by hacking to be clear evidence of bad faith registration and use. See EZQUEST, INC. v. BAORUI, FA 1445631 (Nat. Arb. Forum July 3, 2012) (holding that hacking a complainant’s registration account is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). The Panel finds that Respondent acquired the disputed domain name via hacking, and holds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <gvp.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: May 6, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page