Time Warner Inc. v. wangxiaolei
Claim Number: FA1610001700365
Complainant is Time Warner Inc. (“Complainant”), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, USA. Respondent is wangxiaolei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <timewarnerbenefit.com>, registered with 22Net, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 28, 2016; the Forum received payment on October 28, 2016.
On October 31, 2016, 22Net, Inc. confirmed by e-mail to the Forum that the <timewarnerbenefit.com> domain name is registered with 22Net, Inc. and that Respondent is the current registrant of the name. 22Net, Inc. has verified that Respondent is bound by the 22Net, Inc. 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 November 8, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 2016 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@timewarnerbenefit.com. Also on November 8, 2016, 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 December 5, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 has rights in the TIME WARNER mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,816,474, registered January 11, 1994). Respondent’s domain name <timewarnerbenefit.com> is confusingly similar to the TIME WARNER mark as the domain name merely adds a misspelling of the generic term “benefit,” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been licensed or authorized to use Complainant’s TIME WARNER mark and has not been commonly known by the disputed domain name. Respondent is using the disputed domain name to redirect users to websites which offer prizes, to websites asking users to install programs hiding malware, or to landing pages displaying sponsored links. These uses of the disputed domain name are not bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has registered and used the disputed domain name in bad faith. Respondent is commercially gaining from a likelihood of confusion between the disputed domain name through redirecting users to websites with pay-per-click websites among other bad faith uses. Respondent’s use of the disputed domain to solicit users to submit personal information is an attempt to phish for personal information and demonstrates bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain was registered on October 21, 2014.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad use and registration of the disputed domain name.
The Panel further finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
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 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 (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.”).
The Panel finds that the disputed domain name is confusingly similar to Complainant’s famous trademark, TIME WARNER. Complainant has adequately plead it interests in and to that trademark. Respondent arrives at the disputed domain name by merely appending the generic word “benefit” and the g TLD “.com” to the end of the trademark. This is insufficient to distinguish the disputed domain name from Complainant’s famous trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent has apparently not been authorized to use the disputed domain name and there apparently is no license agreement between the parties. The WHOIS information associated with the disputed domain name identifies Respondent as “wanxiaolei” of the organization “wangxiaolei.” As such, it is apparent that Respondent is not commonly known by the disputed domain name.
Respondent is also not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The disputed domain name resolves to various websites such as a website offering prizes for filling out surveys, a website requesting users download programs which likely install malware, and a website displaying advertisements. See Compl., at Attached Annex E. Using a disputed domain name that is confusingly similar to another’s mark for the purposes of advertisements, phishing, or malware is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent is commercially gaining from a likelihood of confusion between the disputed domain name through redirecting users to websites with pay-per-click websites among other bad faith uses. The disputed domain name resolves to various websites such as a website offering prizes for filling out surveys, a website requesting users download programs which likely install malware, and a website displaying advertisements. See Compl., at Attached Annex E. Panels have held that using another’s mark to commercially gain from the confusing similarity between a mark and a domain name does so in bad faith under Policy ¶ 4(b)(iv). See Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum March 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”); see also Homer TLC, Inc. v. Wang, FA 1336037 (FORUM Aug. 23, 2010) (finding that, where a disputed domain name offers incentives for the completion of surveys, “Internet users are likely to believe that such activities are sponsored by or affiliated with Complainant and is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv)”).
The Panel, therefore, finds that Respondent’s diversionary use of the disputed domain name is in bad faith under Policy ¶ 4(b)(iv).
The Panel also finds that Respondent’s use of the disputed domain name to solicit users to submit personal information is an attempt to phish for personal information and demonstrates bad faith. Again, one of Respondent’s domain names attempts to encourage users to fill out surveys in which they will enter personal information. See Compl., at Attached Ex. E. Panels have held that an attempt to phish for personal information demonstrates bad faith under Policy ¶ 4(a)(iii). See McKinsey & Company, Inc., and McKinsey Holdings, Inc. v. Privacy Protection, report abuse to / Registrar: DELTA-X Ltd., FA1409001580883 (FORUM October 25, 2014) (holding that the respondent had engaged in phishing, which is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii), when the respondent used the disputed domain name in an attempt to obtain Internet users’ personal information including their driver’s license number and name).
As such, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Finally, although not plead in Complainant’s complaint, it is apparent to the Panel that Respondent pursued the disputed domain name with full prior knowledge of Complainant’s interests in and to the trademark TIME WARNER. This mark is internationally famous. It is beyond belief that anyone could be ignorant of the Complainant’s prior interests in and to this trademark. As such, given the totality of the circumstances, the Panel finds that Respondent registered the disputed domain name with prior knowledge of Complainant’s rights and interests in and to this famous trademark.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <timewarnerbenefit.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: December 6, 2016
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