Twitter, Inc. v. PengXiaodong / Xiaodong Peng
Claim Number: FA1603001664560
Complainant is Twitter, Inc. (“Complainant”), represented by David J. Diamond of Richard Law Group, Inc., Texas, USA. Respondent is PengXiaodong / Xiaodong Peng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twtitter.com>, registered with Ename Technology Co., Ltd.; and <htwitter.com>, <tweedadder.com>, <tweetaddder.com>, <tweetadded.com>, <tweetaddeer.com>, <tweetadder4.com>, <tweetaddre.com>, <tweetader.com>, <tweetradder.com>, <tweettadder.com>, <twetadder.com>, <twettadder.com>, <twiteradder.com>, <twittadder.com>, <twitteradder3.com>, <twwetadder.com>, <wwwtweetadder.com>, and <twetcam.me>, registered with Godaddy.Com, Llc.
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 March 8, 2016; the Forum received payment on March 8, 2016.
On March 9, 2016, Ename Technology Co., Ltd. confirmed by e-mail to the Forum that the <twtitter.com> domain name is registered with Ename Technology Co., Ltd. and that Respondent is the current registrant of the name. Ename Technology Co., Ltd. has verified that Respondent is bound by the Ename Technology 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 March 9, 2016, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <htwitter.com>, <tweedadder.com>, <tweetaddder.com>, <tweetadded.com>, <tweetaddeer.com>, <tweetadder4.com>, <tweetaddre.com>, <tweetader.com>, <tweetradder.com>, <tweettadder.com>, <twetadder.com>, <twettadder.com>, <twiteradder.com>, <twittadder.com>, <twitteradder3.com>, <twwetadder.com>, <wwwtweetadder.com>, and <twetcam.me> domain names are registered with Godaddy.Com, Llc and that Respondent is the current registrant of the names. 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 the Policy.
On March 10, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 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@twtitter.com, postmaster@htwitter.com, postmaster@tweedadder.com, postmaster@tweetaddder.com, postmaster@tweetadded.com, postmaster@tweetaddeer.com, postmaster@tweetadder4.com, postmaster@tweetaddre.com, postmaster@tweetader.com, postmaster@tweetradder.com, postmaster@tweettadder.com, postmaster@twetadder.com, postmaster@twettadder.com, postmaster@twiteradder.com, postmaster@twittadder.com, postmaster@twitteradder3.com, postmaster@twwetadder.com, postmaster@wwwtweetadder.com, and postmaster@twetcam.me. Also on March 10, 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 April 4, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant has rights in the TWITTER and TWEET marks through its registrations with the United States Patent and Trademark Office (“USPTO”) (“TWITTER” Reg. No. 3,619,911, registered May 12, 2009, filed April 26, 2007; “TWEET” Reg. No. 4,338,963, registered May 21, 2013, filed April 16, 2009). Respondent’s domain names are confusingly similar to the TWITTER and TWEET marks because each contains one of the marks, or a misspelling thereof, attached to combinations of the following inconsequential additions: the generic terms “adder” or “cam,” or misspellings of such; the letters “www;” numerals; the generic top-level domain (“gTLD”) “.com;” or the country-code top-level domain (“ccTLD”) “.me.”
Respondent is not commonly known by the disputed domain names, as the available WHOIS information does not indicate being so known, and because Respondent is neither associated with Complainant nor permitted to use Complainant’s marks. Respondent fails to use the <twtitter.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website attempts to trick Internet users into downloading malware, or redirects them to prize or survey websites, and because it is offered for sale. Respondent fails to use the remaining domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because they each constitute inactive websites.
Respondent has demonstrated a pattern of bad faith registration and use of domain names through both prior UDRP decisions decided against it and having registered multiple domains at issue here. Respondent uses the <twtitter.com> domain name in bad faith because it is offered for sale generally, and because the resolving website attempts to trick Internet users into downloading malware, or redirects them to prize or survey websites. The remaining domain names are used in bad faith because they each constitute inactive websites. Respondent registered all of the disputed domain names in bad faith because it did so with actual knowledge of Complainant’s rights in the TWITTER and TWEET marks, based upon the famous use of the marks. Additionally, Respondent’s bad faith is evidenced through typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain names were created on the following dates:
<twtitter.com> May 9, 2008
<twittadder.com> September 24, 2009
<tweetader.com> January 1, 2011
<htwitter.com> February 6, 2011
<twetadder.com> March 18, 2011
<tweedadder.com> March 23, 2011
<tweetaddder.com> March 23, 2011
<tweetaddeer.com> March 23, 2011
<tweettadder.com> March 23, 2011
<twettadder.com> March 23, 2011
<twiteradder.com> March 23, 2011
<wwwtweetadder.com> March 23, 2011
<tweetadded.com> March 26, 2011
<tweetadder4.com> March 26, 2011
<tweetaddre.com> March 26, 2011
<tweetradder.com> March 26, 2011
<twitteradder3.com> March 26, 2011
<twwetadder.com> March 26, 2011
<twetcam.me> March 13, 2012
The Panel finds that the disputed domain names are confusingly similar to the Complainant’s registered and famous trademarks, that the Respondent has no rights or legitimate interests in or to these disputed domain names, and that the Respondent has engaged in bad faith use and registration of each and every disputed domain name.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by the 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.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that all of the disputed domain names are registered to the name “Xiaodong Peng” or to the inverted name, “Peng Xiaodong,” and that all domain names use the same registrant e-mail address and all but two feature the same registrant telephone number.
As there is no other evidence in the record to indicate otherwise, the Panel finds the Respondent effectively controls all of the disputed domain names. As such, the Panel finds that Complainant has sufficiently plead its case against this Respondent.
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.”).
The Panel finds that each and every disputed domain name is confusingly similar to Complainant’s registered and famous trademarks. Complainant clearly has rights in or to the trademarks TWITTER and TWEET. See Complainant’s Exhibit C.
Respondent has engaged in a veritable domain name deluge. Respondent has registered nearly 20 domain names that are each confusingly similar to Complainant’s trademarks. Respondent plays unpersuasive games by adding g TLD names or misspelling the Complainant’s mark. The pattern is clear and obvious. None of these plays results in a domain name is that is distinctive from Complainant’s trademarks.
As such, the Panel finds that each and every disputed domain name is confusingly similar to Complainant’s registered and famous trademarks.
The Panel further finds that Respondent has no rights or legitimate interest to this hoard of disputed domain names. Respondent is not known by any of them and it certainly has no permission to register them as domain names.
Respondent apparently fails to use the <twtitter.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website attempts to trick Internet users into downloading malware, or redirects them to prize or survey websites, and because it is offered for sale. Complainant has provided evidence of the use for malware and survey websites in its Exhibit D and evidence that it is offered for sale in its Exhibit E.
The Panel finds that Respondent fails to use the <twtitter.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Further, Respondent also apparently fails to use the <htwitter.com>, <tweedadder.com>, <tweetaddder.com>, <tweetadded.com>, <tweetaddeer.com>, <tweetadder4.com>, <tweetaddre.com>, <tweetader.com>, <tweetradder.com>, <tweettadder.com>, <twetadder.com>, <twettadder.com>, <twiteradder.com>, <twittadder.com>, <twitteradder3.com>, <twwetadder.com>, <wwwtweetadder.com>, and <twetcam.me> domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because they each constitute inactive websites. Complainant has provided, in its Exhibits A.2-A.19, what it purports to be proof that these domain names to not resolve to active websites.
Accordingly, the Panel finds that Respondent fails to use the disputed domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
The Panel finds that the Respondent has engaged in bad faith use and registration of each of the disputed domain names. Respondent demonstratively uses the <twtitter.com> domain name in bad faith because it is offered for sale. Complainant has provided evidence that Respondent offers the domain name for sale to the general public in its Exhibit E.
Accordingly, the Panel finds that Respondent uses the <twtitter.com> domain name in bad faith according to Policy ¶ 4(b)(i).
Respondent has demonstrated a pattern of bad faith registration and use of domain names through both prior UDRP decisions decided against it and having registered multiple domains at issue here. Complainant refers to several cases, on page 14 of the Complaint, in which it claims “Xiaodong Peng” was found to have acted in bad faith. Accordingly, the Panel finds that Respondent has demonstrated a pattern of bad faith as described by Policy ¶ 4(b)(ii).
Respondent also uses the <twtitter.com> domain name in bad faith because the resolving website attempts to trick Internet users into downloading malware, or redirects them to prize or survey websites. Complainant has provided, in its Exhibit D, screenshots purporting to show such uses. Accordingly, the Panel finds Respondent uses the <twtitter.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Respondent uses the <htwitter.com>, <tweedadder.com>, <tweetaddder.com>, <tweetadded.com>, <tweetaddeer.com>, <tweetadder4.com>, <tweetaddre.com>, <tweetader.com>, <tweetradder.com>, <tweettadder.com>, <twetadder.com>, <twettadder.com>, <twiteradder.com>, <twittadder.com>, <twitteradder3.com>, <twwetadder.com>, <wwwtweetadder.com>, and <twetcam.me> domain names in bad faith because they each constitute inactive websites. Complainant has provided, in its Exhibits A.2-A.19, what it purports to be proof that these domain names to not resolve to active websites. Accordingly, the Panel finds that Respondent uses the domain names in bad faith under Policy ¶ 4(a)(iii
Complainant maintains that Respondent registered all of the disputed domain names in bad faith because it did so with actual knowledge of Complainant’s rights in the TWITTER and TWEET marks, based upon the famous use of the marks. Complainant refers to its Exhibit F, containing media coverage dating back to March 11, 2007 to illustrate the fame of the marks. This clearly represents that Respondent had actual, and not only constructive, knowledge of Complainant’s rights in the TWITTER and TWEET marks at the times that it registered the disputed domains. As such, the Panel finds that Respondent registered the domains in bad faith.
Additionally, Complainant alleges that further evidence of bad faith is shown by Respondent’s having engaged in typosquatting, intentionally registering domain names that contain misspellings of the TWITTER and TWEET marks. Though hardly necessary given the conduct of the Respondent herein, the Panel further finds that Respondent has engaged in typosquatting. Such behavior is evidence that Respondent registered the disputed domain names in bad faith.
Therefore, the Panel finds that the Respondent engaged in bad faith use and registration of each and every disputed domain name herein.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <twtitter.com>, <htwitter.com>, <tweedadder.com>, <tweetaddder.com>, <tweetadded.com>, <tweetaddeer.com>, <tweetadder4.com>, <tweetaddre.com>, <tweetader.com>, <tweetradder.com>, <tweettadder.com>, <twetadder.com>, <twettadder.com>, <twiteradder.com>, <twittadder.com>, <twitteradder3.com>, <twwetadder.com>, <wwwtweetadder.com>, and <twetcam.me> domain names be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: April 6, 2016
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