MUFG Union Bank v. Xuelian Liu
Claim Number: FA2001001880971
Complainant is MUFG Union Bank (“Complainant”), represented by Thomas E. Zutic of DLA Piper LLP (US), District of Columbia, USA. Respondent is Xuelian Liu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <purepoint.online> (‘the Domain Name’), registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 28, 2020; the Forum received payment on January 28, 2020. The Complaint was submitted in both Chinese and English.
On February 4, 2020, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <purepoint.online> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 February 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 3, 2020 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@purepoint.online. Also on February 12, 2020, 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 March 9, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark PUREPOINT, registered in the USA for financial services since 2017. It owns PUREPOINT.com.
The Domain Name registered in 2018 is confusingly similar to the Complainant’s registered mark adding only the gTLD .online.
The Respondent has no rights or legitimate interests in the Domain Name or using the name PUREPOINT for financial services and is not authorized by the Complainant.
The Domain Name has been used for a site mimicking that of the Complainant for suspected phishing purposes. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith diverting Internet uses for commercial and fraudulent purposes and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the mark PUREPOINT, registered in the USA for financial services since 2017. It owns PUREPOINT.com.
The Domain Name registered in 2018 has been used for a web site that mimics the official site of the Complainant using the same logo as a masthead and a false statement that the operator of the site attached to the Domain Name is affiliated with the 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Preliminary Issue: Language of the Proceedings
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the 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 the Complainant's PUREPOINT mark (which is registered in USA for financial services with first use recorded as 2017) and the gTLD .online.
The gTLD “.online” does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the 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 identical to the Complainant’s registered mark for the purposes of the Policy.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Additionally, lack of authorization to use a mark constitutes further proof that a respondent lacks rights in a mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record notes “Xuelian Liu” as the registrant and no information suggests that Complainant has permitted Respondent to use the PUREPOINT mark in any way.
The web site attached to the Domain Name mimics the Complainant’s official web site using the same logo as a masthead and bearing the false statement that the operator of the site is a division of the Complainant so that the Respondent’s site appeared to be an official site of the Complainant. The Panel finds this use is passing off, fraudulent and confusing. As such it cannot amount to the bona fide offering of goods and services. As it is commercial it cannot be legitimate noncommercial fair use. See 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).”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Panelist, the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it mimics the Complainant’s official web site using its logo as a masthead and a false statement that the operator of the web site is affiliated to the Complainant. This use shows that the Respondent is aware of the Complainant and its rights, business and services. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant.). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii).).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(iii) and 4(b)(iv) and there is no need to consider further alleged grounds of 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 <purepoint.online> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 9, 2020
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