PayPal, Inc. v. Lin Zong Xing
Claim Number: FA1711001758899
Complainant is PayPal, Inc. (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Lin Zong Xing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <paypalmoneypools.com> (‘the Domain Name’), registered with HiChina Zhicheng Technology Limited.
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.
Dawn Osborne of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 16, 2017; the Forum received payment on November 16, 2017.
On November 20, 2017, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <paypalmoneypools.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited 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 20, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 11, 2017 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@paypalmoneypools.com. Also on November 20, 2017, 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 14, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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’s contentions can be summarised as follows:
The Domain Name shows that the exponent has a working knowledge of English and other decisions against this same Respondent have proceeded in English as it was found Respondent had a level of familiarity with and knowledge of English. English is the appropriate language for these proceedings.
Complainant owns the registered trade mark PAYPAL first registered in the USA in 2002 and used since 1998 in relation to money transfers and financial services. It owns paypal.com.
In November 2017 Complainant launched ‘Money Pools’ a services that allows people to create pages to allow their contacts to fundraise.
The Domain Name registered in 2017 is confusingly similar to the PAYPAL mark containing it in its entirety, merely adding the term ‘money pools’ which relates to Complainant and its services and the gTLD .com which should be disregarded for the purposes of confusing similarity.
Respondent is using the Domain Name at a site that links to third parties that compete with the Complaint and indicate that the Domain Name is for sale.
Respondent has not used the Domain Name in connection with a bona fide offering of goods and services or a non commercial fair use. Respondent is not commonly known by Complainant’s PAYPAL mark or affiliated with or authorised by Complainant in any way.
Complainant asked Respondent to transfer the name to Complainant. Respondent’s attorney in China indicates Respondent would transfer it to Complainant for $5000 USD.
The general offering for sale of a domain name containing a famous mark for sale indicates a lack of rights or legitimate interests in the Domain Name.
The fact that Respondent selected the Domain Name immediately upon launch of PAYPAL MONEY POOLS demonstrates without question that Respondent was not only familiar with Complainant and its business but intentionally adopted the Domain Name is order to create an association with Complainant and its services. Such registration of a mark with actual knowledge disrupts a competing business and is evidence of bad faith registration and use under Policy 4 (b)(iii).
Furthermore, promoting third party processing services from links from the resolving web site for commercial gain is diversion showing bad faith registration and use under Policy 4 (b)(iv).
Respondent has also been ordered to transfer disputed domain names to previous Complainants under the Policy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the registered trade mark PAYPAL first registered in the USA in 2002 and used since 1998 in relation to money transfers and financial services. It owns paypal.com. In November 2017 Complainant launched ‘Money Pools’ a services that allows people to create pages to allow their contacts to fundraise.
The Domain Name has been used to point to pay per click links including to financial services competing with those of Complainant.
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 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.”).
Preliminary Issue
Pursuant to UDRP Rule 11(a), the Panel 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.
Identical or confusingly similar
The Domain Name consists of Complainant’s registered PAYPAL mark (registered in the USA since 2002 for financial services) the additional term ‘money pools’ and the gTLD .com. The Panel agrees that the addition of the term ‘money pools’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy as Complainant’s mark is still clearly identifiable in the Domain Name and ‘money pools’ refers to a service offered by Complainant.
The gTLD .com does not serve to distinguish the Domain Name from the PAYPAL mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
It it is clear from the evidence that Respondent has used the page attached to the Domain Name to promote services which are not connected with Complainant through pay per link links.
The usage of Complainants’ mark and name of one of its services which have a reputation in relation to similar financial services not connected with Complainants is not fair and the page attached to the Domain Name does not make it clear that there is no commercial connection with Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries, Inc v domain admin/private registrations aktien gesellschaft, FA 1506001626253 (Forum July 29, 2015).
Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use Complainants’ trade marks in this way. The offer for sale of a domain name also can suggest a Respondent has no rights or legitimate interests in a domain name See Williams-Sonoma, Inc. v Fees, FA 937704 (Forum Apr 25, 2007).
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above Respondent's use of the site is commercial and it is using it to make a profit from promoting services not associated with Complainant in a confusing and disruptive manner. See Health Republic Insurance Company v above.com Legal, FA 1506001622068 (Forum July 10, 2015) (‘The use of a domain name’s resolving web site to host links to competitors of a complainant shows intent to disrupt that complainant’s business thereby showing bad faith in use and registration under Policy 4 (b)(iii).’)
The use of the term ‘money pools’ in the domain name reflects a service offered by Complainant and this and links to Complainant’s services on the page attached to the Domain Name makes it clear Respondent was aware of Complainants’ rights at the time of registration and use. It seems clear that the use of Complainant’s mark in the Domain Name and the use of the name of one of the services offered by Complainant would cause people to associate the website at the Domain Name with Complainant and its business and services. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with Complainant’s trade mark as to the source, sponsorship, affiliation or endorsement of the web site under Policy 4 (b)(iv).
The Domain Name has also been offered for sale for a sum in excess of out of pocket costs to Complainant and the site attached to the Domain Name indicates the Domain Name may be for sale. This indicates bad faith registration and use under Policy 4 (b)(i).
As such, the Panel believes that Complainant has made out their case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy. The Panelist notes that Respondent also been involved in other UDRP cases where it was required to transfer domain name to Complainant and other trade mark owners, but in view of the findings above there is no need to consider further possible grounds demonstrating Respondent’s bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <paypalmoneypools.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 18, 2017
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