Plain Green, LLC v. wenqiang tang
Claim Number: FA1505001621656
Complainant is Plain Green, LLC (“Complainant”), represented by Peter T. Wakiyama, Pennsylvania, USA. Respondent is wenqiang tang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <plaingreenloans.net>, registered with NameSilo, LLC.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 28, 2015; the Forum received payment on May 28, 2015.
On May 29, 2015, NameSilo, LLC confirmed by e-mail to the Forum that the <plaingreenloans.net> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC 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 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 22, 2015 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@plaingreenloans.net. Also on June 2, 2015, 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 June 26, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant owns the PLAIN GREEN mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,214,941, registered Sept. 25, 2012, filed May 25, 2011). Complainant uses the PLAIN GREEN mark in connection with its competitive loans and cash advances to consumers via the Internet.
2. The <plaingreenloans.net> domain name, registered on June 22, 2012, is confusingly similar to the PLAIN GREEN mark. The domain name incorporates Complainant’s mark in full, removes the space between “plain” and “green,” adds the generic term “loans,” and inserts the generic top-level domain (“gTLD”) “.net” to the domain name.
3. Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS record for the disputed domain name does not reflect that Respondent is commonly known by the disputed domain name.
4. Further, Complainant has not given Respondent permission to use the PLAIN GREEN mark. Respondent’s lack of rights or legitimate interests in the <plaingreenloans.net> domain name is made evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use.
5. Respondent uses the <plaingreenloans.net> domain name to divert Internet users to Respondent’s and/or Respondent’s affiliate’s commercial website. Additionally, the resolving website now features commercial hyperlinks, presumably for Respondent’s financial gain.
6. Respondent has engaged in bad faith registration and use of the <plaingreenloans.net> domain name. Respondent seeks to commercially benefit from the likelihood of confusion with Complainant’s mark in violation of Policy ¶ 4(b)(iv). Further, Respondent registered the disputed domain name with knowledge of Complainant’s rights to the PLAIN GREEN mark, which establishes additional evidence of bad faith registration under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the PLAIN GREEN mark. Respondent’s domain name is confusingly similar to Complainant’s PLAIN GREEN mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <plaingreenloans.net> domain name, and that Respondent registered and uses the domain name in bad faith.
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 owns the PLAIN GREEN mark through its registration with the USPTO (Reg. No. 4,214,941, registered Sept. 25, 2012, filed May 25, 2011). Complainant uses the PLAIN GREEN mark in connection with its competitive loans and cash advances to consumers via the Internet. The Panel concludes that Complainant’s valid registration of the PLAIN GREEN mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i) dating back to the May 25, 2011 filing date with the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”). Complainant’s USPTO registration is sufficient, even though Respondent reportedly resides in China. Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant contends that the <plaingreenloans.net> domain name is confusingly similar to the PLAIN GREEN mark. The domain name incorporates Complainant’s mark in full, removes the space between “plain” and “green,” adds the generic term “loans,” and inserts the gTLD “.net” to the domain name. The elimination of spaces and the addition of a gTLD does not adequately differentiate a disputed domain name from the registered mark. See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”). Further, the addition of a generic term does not sufficiently distinguish a domain name from a mark. See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). Therefore, the Panel finds that the disputed domain name is confusingly similar to the PLAIN GREEN mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name. Specifically, Complainant urges that Respondent is not commonly known by the disputed domain name, as the WHOIS record for the disputed domain name does not reflect that Respondent is commonly known by the disputed domain name. The WHOIS information for the disputed domain name refers to “wenqiang tang” as the registrant of record. Further, Complainant states it has not given Respondent permission to use the PLAIN GREEN mark. Without any evidence from Respondent to refute these allegations, the Panel agrees that the record establishes Respondent is not commonly known by the 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).
Complainant asserts that Respondent’s lack of rights or legitimate interests in the <plaingreenloans.net> domain name is made evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent uses the <plaingreenloans.net> domain name to divert Internet users to Respondent’s and/or Respondent’s affiliate’s commercial website. Additionally, the resolving website now features commercial hyperlinks, presumably for Respondent’s financial gain. Neither of such uses constitutes a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. 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). In light of these contentions, this Panel may find Respondent’s disputed domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶ 4(a)(ii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent seeks to commercially benefit from the likelihood of confusion with Complainant’s mark in violation of Policy ¶ 4(b)(iv). Complainant alleges that Respondent uses the disputed domain name to lure consumers to its own website for commercial gain. The disputed domain name was previously used to “generate leads” for Respondent, and the disputed domain name is now used to feature generic hyperlinks. Both of these behaviors have been found to constitute bad faith registration and use. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Complainant has shown that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Further, Complainant contends Respondent registered the disputed domain name with knowledge of Complainant’s rights in the PLAIN GREEN mark, which establishes additional evidence of bad faith registration under Policy ¶ 4(a)(iii). Complainant contends it had already applied for its USPTO registration of the PLAIN GREEN mark, and had achieved significant notoriety when Respondent registered the domain name. A reasonable inference from this record, due to the fact that the domain name incorporates Complainant’s mark in its entirety, is that Respondent had actual knowledge of the mark when the domain name was registered and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii). See 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”).
The Panel finds Complainant has satisfied 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 <plaingreenloans.net> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: July 1, 2015
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