Ripple Labs Inc. v. Luong Truong
Claim Number: FA1803001776244
Complainant is Ripple Labs Inc. (“Complainant”), represented by Rachel Jacques of Maschoff Brennan, Utah, USA. Respondent is Luong Truong (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ripplevietnam.net>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 15, 2018; the Forum received payment on March 15, 2018.
On March 16, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <ripplevietnam.net> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 March 19, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 2018 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@ripplevietnam.net. Also on March 19, 2018, 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. Respondent did however send an e-mail to the Forum, see below.
On April 11, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is in the traditional and virtual currency business. In connection with this business, Complainant uses the RIPPLE mark to promote its goods and services. Complainant established rights in the RIPPLE mark through registration in the United States on December 24, 2013.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s RIPPLE mark because it merely appends the geographic term “VIETNAM” and the generic top-level domain (“gTLD”) “.com” to the fully-incorporated mark. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its RIPPLE mark in any fashion. Respondent is not commonly known by the disputed domain name, as the WHOIS information of record lists “Luong Truong” as the registrant. Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass off as Complainant and link directly to Complainant’s own website. To the extent Respondent actually offers any services on the resolving website, such services would be directly competitive with those offered by Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent uses the domain name to create confusion with Complainant’s mark for Respondent’s commercial gain. Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the RIPPLE mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its e-mail to the Forum Respondent states:
Free is the foundation of Internet. The domain is registered several years ago from the beginning of Ripple. All information there is for education purpose. The people in different language can visit and read to understand more about Ripple and their technology. With this purpose, all links is redirect to the original. Nothing more, no hidden purpose, nothing is illegal here. I believe they are convincing something that I am not doing and their purpose is to take the domain from me. Similar case, amazon.net is not belong to AMZN.
Their statements is not proof anything illegal that I may suppose to. My solution:
1/ I remove the content relate to Ripple. Or,
2/ They have to pay for the domain. I bought it by my own money.
Internet is freedom!
Complainant has rights in the mark RIPPLE dating back to December 24, 2013.
The disputed domain name was registered on April 30, 2014.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that is a copy of Complainant’s own <ripple.com> website, including Complainant’s mark and logo.
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 disputed domain name is confusingly similar to Complainant’s RIPPLE mark because Respondent merely appended the geographic term “VIETNAM” and the gTLD “.com” to the fully incorporated mark. The addition of a geographic term and a gTLD do not differentiate a domain name from an incorporated mark per Policy ¶ 4(a)(i). See Skype Ltd. v. Sacramento, FA 747948 (Forum Aug. 30, 2006) (“The addition of the geographic term [“Brasil”] does not avoid confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”). Accordingly, the Panel finds that the disputed domain name is confusingly similar, in the sense of the Policy, to Complainant’s RIPPLE mark.
Complainant has not licensed or otherwise authorized Respondent to use its RIPPLE mark in any fashion. Respondent is not commonly known by the domain name: absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent is presumed to lack rights and legitimate interests in the domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name). Under Policy ¶ 4(c)(ii), WHOIS information can be used to support a finding that a respondent is not commonly known by a disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The WHOIS information of record for the disputed domain name lists “Luong Truong” as the registrant. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name.
Further, Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent uses the domain name to pass off as Complainant: Complainant provided screenshots of the resolving website, which indicate that the site is a copy of Complainant’s own <ripple.com> website. Use of a domain name to pass off as a complainant may not be considered a bona fide offering or fair use under Policy ¶ 4(c)(i) or (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug.21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Accordingly, the Panel finds that Respondent used the disputed domain name to pass off as Complainant and finds that Respondent failed to use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use.
In addition, to the extent that Respondent offers any services at the resolving website, such services would be competitive with Complainant’s business. Use of a domain name to offer services competitive with a mark holder can indicate a respondent does not have rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel finds that Respondent has no rights or legitimate interests in the domain name.
In his e-mail to the Forum, Respondent admits using Complainant’s mark. He claims this is not illegal and that “Internet is freedom.” Respondent’s use of Complainant’s mark and logo on the resolving web pages may or may not be illegal. Be that as it may, his use of Complainant’s mark in the disputed domain name violates the Policy: see below. Domain names cannot be registered and used in violation of the Policy: the Internet is not “free” in that sense. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to create confusion with Complainant’s mark to attract Internet users for Respondent’s commercial gain. Use of a domain name to create confusion as to the source, sponsorship, affiliation, or endorsement therewith for commercial gain may evidence bad faith per Policy ¶ 4(b)(iv). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”). Accordingly, the Panel finds that Respondent used the domain name in bad faith.
Further, Respondent registered the disputed domain name with full knowledge of Complainant’s rights in the RIPPLE mark. Actual knowledge of a complainant's rights in the mark prior to registering the disputed domain name is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent registered and used the disputed domain name in bad faith with actual knowledge of Complainant’s rights.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ripplevietnam.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 11, 2018
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