World Wrestling Entertainment, Inc. v. dai wei feng c/o dai wei feng
Claim Number: FA1403001547359
Complainant is World Wrestling Entertainment, Inc. (“Complainant”), represented by Matthew C. Winterroth of World Wrestling Entertainment, Inc., Connecticut, USA. Respondent is dai wei feng c/o dai wei feng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwesp.com>, registered with 35 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 7, 2014; the National Arbitration Forum received payment on March 10, 2014. The Complaint was submitted in both English and Chinese.
On March 10, 2014, 35 Technology Co., Ltd. confirmed by e-mail to the National Arbitration Forum that the <wwesp.com> domain name is registered with 35 Technology Co., Ltd. and that Respondent is the current registrant of the name. 35 Technology Co., Ltd. has verified that Respondent is bound by the 35 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 10, 2014, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of March 31, 2014 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@wwesp.com. Also on March 10, 2014, 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 7, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Language of the Proceedings
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Policy ¶ 4(a)(i)
Policy ¶ 4(a)(ii)
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant uses the WWE mark in connection with world-wide retail and entertainment goods and services. Complainant has registered the WWE mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,772,683 registered Oct. 7, 2003).
Respondent, dai wei feng c/o dai wei feng, registered the <wwesp.com> domain name on August 10, 2008. Respondent’s resolving website for the <wwesp.com> domain name includes Complainant’s WWE marks and copyrighted materials. Respondent registered and is using the <wwesp.com> domain name for the sale of counterfeit goods.
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 has rights in the <wwesp.com> domain name under Policy ¶ 4(a)(i) through registration of its WWE mark with the USPTO, regardless of where Respondent is domiciled. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <wwesp.com> domain name is confusingly similar to the WWE mark. Neither the addition of a gTLD nor the letters “sp” avoid a finding of Policy ¶ 4(a)(i) confusing similarity. See Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”).
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).
Complainant has not authorized Respondent to use the WWE mark in Internet domain names. The WHOIS information lists “dai wei feng” as the registrant of record. Respondent is not commonly known as the <wwesp.com> domain name Policy ¶ 4(c)(ii). See, e.g., LawyerLocate.ca Inc v. J Kirby Inwood / CanLaw, FA 1496334 (Nat. Arb. Forum June 20, 2013) (“Respondent’s name is J Kirby Inwood and his organization’s name is CanLaw. There is no evidence Respondent is known by the Domain Names nor by the names Lawyerlocate or Lawyerlocate.ca.”).
The resolving website of Respondent’s <wwesp.com> domain name includes Complainant’s WWE marks and copyrighted materials. Respondent is using the <wwesp.com> domain name for the sale of counterfeit goods. Respondent is not using the <wwesp.com> domain name to make a bona fide offering of goods and services or legitimate noncommercial or fair use. See Keihin Corp. v. Youli Ltd., FA 1106190 (Nat. Arb. Forum Dec. 18, 2007) (not a Policy ¶ 4(c)(i) bona fide offering, or Policy ¶ 4(c)(iii) legitimate noncommercial or fair use when the domain name housed a store of counterfeit goods).
Respondent is using the <wwesp.com> domain name for the sale of counterfeit goods. Respondent is profiting from the likelihood of confusion as to complainant’s affiliation with the disputed domain name. Therefore, Respondent registered and is using the <wwesp.com> domain name in bad faith under Policy ¶ 4(b)(iv). See H-D Michigan, LLC v. Ross, FA 1250712 (Nat. Arb. Forum Apr. 23, 2009) (determining that the respondent’s selling of counterfeit products creates the likelihood of confusion as to the complainant’s affiliation with the disputed domain name and allows the respondent to profit from that confusion).
Respondent actually knew of Complainant’s rights in the WWE when registering the domain name. Therefore, Respondent registered the <wwesp.com> domain name in bad faith under Policy ¶ 4(a)(iii). See, e.g., Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration)..
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwesp.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 21, 2014
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