Disney Enterprises, Inc. v. bin / binzhenhua
Claim Number: FA1511001649792
Complainant is Disney Enterprises, Inc. (“Complainant”), represented by J. Andrew Coombs of J. ANDREW COOMBS, A Professional Corporation, California, USA. Respondent is bin / binzhenhua (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwdisneylife.com>, registered with Hangzhou AiMing Network Co., LTD.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 24, 2015; the Forum received payment on November 24, 2015. The Compliant was received in both Chinese and English.
On November 25, 2015, Hangzhou AiMing Network Co., LTD confirmed by e-mail to the Forum that the <wwwdisneylife.com> domain name is registered with Hangzhou AiMing Network Co., LTD and that Respondent is the current registrant of the name. Hangzhou AiMing Network Co., LTD has verified that Respondent is bound by the Hangzhou AiMing Network Co., LTD 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 December 4, 2015, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of December 24, 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@wwwdisneylife.com. Also on December 4, 2015, the Chinese language 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 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 DISNEY mark based on longstanding registration with trademark agencies throughout the world including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,162,727, registered July 28, 1981). Respondent’s disputed <wwwdisneylife.com> domain is confusingly similar to Complainant’s DISNEY mark as the domain differs from the mark through the letters “www,” the generic top-level domain (“gTLD”) “.com,” and the generic term “life.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been authorized to use the DISNEY mark, nor commonly known by the disputed domain name. Further, Respondent’s use of the disputed domain, to link to a landing page which links to sites related to Complainant’s products or services, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has registered and is using the disputed domain name in bad faith. Respondent resolving the disputed domain to a landing page hosting links that compete with Complainant demonstrates bad faith. Additionally, Respondent had actual knowledge of Complainant’s rights in the DISNEY mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Language of the Proceedings
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant, Disney Enterprises, Inc., has rights in the DISNEY mark through registration with trademark agencies throughout the world including the USPTO (e.g., Reg. No. 1,162,727, registered July 28, 1981). Respondent’s disputed <wwwdisneylife.com> domain name is confusingly similar to Complainant’s DISNEY mark.
Respondent, bin / binzhenhua, registered the <wwwdisneylife.com> domain name on October 22, 2015. Respondent’s domain name resolves to a landing page with click-through links to third party sites, some of which compete with 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 (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 has rights in the DISNEY mark under Policy ¶ 4(a)(i) through registration with trademark agencies throughout the world including the USPTO. See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that, where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i)”).
Respondent’s <wwwdisneylife.com> domain name is confusingly similar to Complainant’s DISNEY mark under Policy ¶ 4(a)(i) as the domain differs from the mark through the letters “www,” the generic top-level domain “.com,” and the generic term “life.”
Complainant has not authorized Respondent to use the DISNEY mark. Respondent is not commonly known by the <wwwdisneylife.com> domain name under Policy ¶ 4(c)(ii). The WHOIS information for the domain name lists “bin” of the organization “binzhenhua” as the registrant. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent’s use of the wwwdisneylife.com> domain name to link to a landing page with click-through links to third party sites, some of which compete with Complainant, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Respondent demonstrated bad faith under Policy ¶ 4(b)(iv) through resolving the disputed domain to a landing page hosting links to third party sites, some of which compete with Complainant. Respondent’s domain resolves to a website that includes numerous click-through links referencing the DISNEY mark. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Respondent had actual knowledge of Complainant's rights in the DISNEY mark prior to registering the <wwwdisneylife.com> domain name. Therefore, Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. 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).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwdisneylife.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 13, 2016
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