PopSockets LLC v. jing jing
Claim Number: FA1808001802316
Complainant is PopSockets LLC (“Complainant”), represented by Gregory J. Chinlund of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is jing jing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <popsocketsale.com>, registered with GoDaddy.com, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 20, 2018; the Forum received payment on August 20, 2018.
On August 21, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <popsocketsale.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 August 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 12, 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@popsocketsale.com. Also on August 23, 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.
On September 17, 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 the United States’ leading provider of grip and mount accessories for handheld electronic devices. Complainant uses its POPSOCKETS mark to promote its products and services and established rights in the mark through registration in the United States in 2014.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it merely adds the generic term “sale” and the generic top-level domain (“gTLD”) “.com.” 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 POPSOCKETS mark in any fashion. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “jing jing” 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 itself off as Complainant and resolve to a website purporting to offer Complainant’s products for sale. Complainant cites UDRP precedents to support its position.
Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and create confusion with Complainant’s mark for commercial gain by resolving to a website purportedly offering Complainant’s products for sale. Further, Respondent registered the disputed domain name with full knowledge of Complainant’s rights in the POPSOCKETS mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark POPSOCKETS and uses it to market grip and mount accessories for handheld electronic devices.
Complainant’s rights in its marks date back to 2014.
The disputed domain names were registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website that displays Complainant’s mark and logo and purports to offer for sale Complainant’s products.
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 mark as it incorporates the mark and merely adds the generic term “sale” and the gTLD “.com.” The addition of a generic term and gTLD may not sufficiently distinguish a disputed domain name from a mark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Accordingly, the Panel finds that the disputed domain name is confusingly similar, in the sense of the Policy, to Complainant’s mark.
Complainant has not licensed or otherwise authorized Respondent to use its POPSOCKETS mark in any fashion. Respondent is not commonly known by the disputed domain name: absent a response, 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)). Here, the WHOIS information of record lists “jing jing” as the registrant. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name.
Respondent uses the disputed domain name to pass itself off as Complainant and resolve to a website purporting to offer Complainant’s products for sale. Specifically, Complainant provided screenshots of the resolving website, which features Complainant’s POPSOCKETS mark and logo, displays photographs of Complainant’s products, and purports to offer Complainant’s products for sale. Under Policy ¶¶ 4(c)(i) and (iii), use of a domain name to pass off as a complainant and offer a complainant’s products for sale at the resolving website may not be considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site); see also Nike, Inc. v. Dias, FA 135016 (Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors). As such, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, Respondent attempts to disrupt Complainant’s business and create confusion with Complainant’s mark for commercial gain by resolving to a website purportedly offering Complainant’s products for sale. Under Policy ¶¶ 4(b)(iii) and (iv), use of a domain to disrupt a complainant’s business or create confusion with a complainant’s mark for commercial gain may evince a finding of bad faith registration and use. See G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”); see also Fanuc Ltd v. Mach. Control Servs., FA 93667 (Forum Mar. 13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a likelihood of confusion with the complainant's mark by using a domain name identical to the complainant’s mark to sell the complainant’s products). As such, the Panel finds that Respondent has engaged in Policy ¶¶ 4(b)(iii) and (iv) bad faith registration and use.
Further, Respondent had actual knowledge of Complainant's rights in the POPSOCKETS mark because the resolving website displays Complainant’s mark and logo. Arguments of bad faith based on constructive notice are irrelevant because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). However, actual knowledge of 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 Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the POPSOCKETS mark and thus registered and is using the disputed domain name in 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 <popsocketsale.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 17, 2018
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