Get More Math v. Lei Shi
Claim Number: FA2006001901658
Complainant is Get More Math (“Complainant”), represented by David Miller, California, USA. Respondent is Lei Shi (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wwwgetmoremath.com>, <getmoemath.com>, and <getmoremat.com> (the “Disputed Domain Names”), registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).
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.
Lynda M Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 24, 2020; the Forum received payment on June 24, 2020.
On June 27, 2020, the Registrar confirmed by e-mail to the Forum that the <wwwgetmoremath.com>, <getmoemath.com>, and <getmoremat.com> Disputed Domain Names are registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the Disputed Domain Names. The Registrar has verified that Respondent is bound by the Chengdu West Dimension Digital 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 July 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 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@wwwgetmoremath.com, postmaster@getmoemath.com, postmaster@getmoremat.com. Also on July 2, 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 July 28, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M Braun 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 Disputed Domain Names be transferred from Respondent to Complainant.
A. Complainant
Complainant is an online educational software provider, servicing schools, teachers, and students. Complainant is the owner of the “Get More Math” brand and is the owner of numerous trademark registrations in the United States Patent and Trademark Office (the “USPTO”) to identify and distinguish its services, including United States Registration No. 5495132 for GET MORE MATH, registered on June 19, 2018 and United States Registration No. 5902625 for GMM, registered on November 5, 2019 (collectively, the “GET MORE MATH Mark”). The GET MORE MATH Mark has been in continuous use in commerce in the United States since 2016.
Complainant has registered domain names incorporating the GET MORE MATH Mark, namely <getmoremath.com>, its official website, resolves to a website containing information about GET MORE MATH services and products.
The Disputed Domain Names are identical or confusingly similar to Complainant’s GET MORE MATH Mark as they are typos or misspellings of the trademark, with the exclusion of the “.” (dot) between www and getmoremath.com in the <wwwgetmoremath.com> instance, the exclusion of the letter “r” in the <getmoemath.com> instance , and the exclusion of the letter “h” in the <getmoremat.com> instance.
Respondent has no rights or legitimate interests in the Disputed Domain Names. Respondent is not commonly known by the Disputed Domain Names, which are obvious misspellings of the GET MORE MATH Mark. Rather, a search of Respondent’s email address on a search engine demonstrates a history of purchasing domains incorporating third party trademarks.
Respondent registered and used the Disputed Domain Names in bad faith. Specifically, Respondent does not use the Disputed Domain Names for any bona fide offering of goods or services. Instead, Respondent uses the Disputed Domain Names for the purpose of advertising or to attempt to install malware and browser extensions on users’ computers, thereby threatening Complainant’s reputation and harming Internet users. In addition, the Respondent made an offer to sell Complainant the Disputed Domain Names for USD 4199, an amount in excess of its out of pocket costs, after Complainant made a reasonable offer to Respondent to purchase the Disputed Domain Names, another indication of Respondent’s bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights in the GET MORE MATH Mark. The Disputed Domain Names are confusingly similar to Complainant’s GET MORE MATH Mark. Further, Complainant has established that Respondent lacks rights or legitimate interests in the use of the Disputed Domain Names and that Respondent registered and is using the Disputed Domain Names in bad faith.
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 Disputed Domain Names registered by Respondent are 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 Disputed Domain Names; and
(3) the Disputed Domain Names have been registered and are 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
Prior to discussing the three elements of the Policy, the Panel must decide the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has discretion to determine whether a different language should be used in the proceedings, with regard to the particular circumstances of the case. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English).
The Panel agrees with Complainant that the proceeding should be conducted in English. Respondent corresponded and negotiated with Complainant in English. Specifically, Respondent’s email communications demonstrate that Respondent is capable of understanding and communicating in English. In addition, the Disputed Domain Names do not convey any specific meaning in Chinese and the websites to which they resolve contain coherent English terms, such as “get”, “more”, and “math”.
Accordingly, the Panel has concluded that the remainder of the proceeding should be conducted in English.
The Panel has concluded that Complainant has shown to have rights in the GET MORE MATH Mark based upon registration of the GET MORE MATH Mark with the USPTO, as referenced above. Registration of a mark with the USPTO confers upon a complainant trademark rights for the purposes of the Policy ¶4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrates its rights in such mark for the purposes of Policy ¶ (a)(i).”).
The Panel also concludes that the Disputed Domain Names are confusingly similar to the GET MORE MATH Mark under Policy ¶ 4(a)(i), based on the slight spelling variations present therein. The misspelling of a complainant’s trademark is known as typosquatting and is deemed confusingly similar to the trademark. A domain name may be confusingly similar to a complainant’s mark when it fully incorporates the mark, varying it only by subtle misspellings and adding a generic Top-Level Domain (“gTLD”). See Western Alliance Bancorporation v. James Brandon, FA 1783001 (Forum June 5, 2018) (“Respondent’s <westernalliancebcorporation.info> domain name is confusingly similar to Complainant’s WESTERN ALLIANCE BANCORPORATION mark because it merely appends the gTLD ‘.info’ to a misspelled version of Complainant’s mark.”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by the Complainant.
The Panel has concluded that Respondent has no rights or legitimate interests in the Disputed Domain Names for the purposes of Policy ¶ 4(a)(ii). Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), at which point the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). Here, Complainant provided evidence, in the form of multiple screenshots, sufficient to establish a prima facie case and Respondent failed to meet its burden by not responding to the Complaint.
Further, Respondent is not commonly known by the Disputed Domain Names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the GET MORE MATH Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. Where no response is filed, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name, even when the registrant appears to be associated with the complainant. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”).
Offering to sell a disputed domain name, particularly where minor spelling errors are present in the domains, is evidence of a lack of rights and legitimate interests. See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name); See Also Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). As discussed previously, the Disputed Domain Names only slightly vary from the GET MORE MATH Mark due to minor spelling variations, thereby making them confusingly similar. Furthermore, Respondent attempted to take advantage of Complainant by exhibiting an uninhibited willingness to part with the Disputed Domain Names in an expensive transaction.
Accordingly, the Panel finds that Policy 4(a)(ii) has been established by the Complainant.
This Panel finds that, based on the record, the Complainant has demonstrated the existence of Respondent’s bad faith registration and use pursuant to paragraph 4(b) of the Policy.
First, an intent to sell the disputed domain name can be evidence of bad faith registration and use under Policy ¶ 4(b)(i). See Hard Rock Café International (USA), Inc. v. Gameday Tickets, FA1202001428106 (Forum Mar. 20, 2012) (finding that the respondent’s offer to sell the disputed domain name to the complainant is evidence that the respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(i), regardless of the fact that Complainant made the first offer). Additionally, attempting to sell the domain name for excess of out-of-pocket costs suggest bad faith registration and use under Policy ¶ 4(b)(i). See loanDepot.com, LLC v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot, FA 1786281 (Forum June 8, 2018) (“Complainant shows that Respondent offers the disputed domain name for sale for $950, no doubt above its out-of-pocket costs. The Panel finds that this constitutes bad faith under Policy ¶4(b)(i).”). Here, the evidence submitted by Complainant indicates that Respondent refused a reasonable offer for the Disputed Domain Names and, rather, attempted to sell them for an inflated amount.
Second, attempting to install malware and attract Internet users for commercial gain by hosting third party hyperlinks to competing products supports a finding of bad faith under Policy ¶ 4(a)(iii). See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been registere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”); see Also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Here, Complainant has supplied screenshot evidence demonstrating that Respondent uses the Disputed Domain Names to host competing hyperlinks and attempts to add malware on users’ devices.
Third, Respondent’s bad faith registration and use of the Disputed Domain Names has been demonstrated by the Respondent’s pattern of cybersquatting, whereby the Respondent registered numerous domain names incorporating third party trademarks. See Liberty Mutual Insurance Company v. Gioacchino Zerbo, Case No. FA1299744 (Forum Feb. 3, 2010). These domain names can be found by placing Respondent’s email address in a search engine bar and reviewing the list of approximately one hundred domain names.
Lastly, having prior knowledge of a complainant’s trademarks before registering a domain name supports a finding of bad faith under Policy ¶ 4(a)(iii) .See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it); Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). The Panel finds that the Respondent had actual knowledge of Complainant’s rights in its GET MORE MATH Mark when registering the Disputed Domain Names. Respondent registered the Disputed Domain Names in 2019, a year after Complainant first obtained registration for the GET MORE MATH Mark and years after Complainant first obtained a registration for the domain name <getmoremath.com>. Thus, Respondent likely knew of Complainant’s pre-existing rights in the GET MORE MATH Mark and, therefore, acted in bad faith when it registered and used the Disputed Domain Names.
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by the 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 <wwwgetmoremath.com>, <getmoemath.com>, and <getmoremat.com> Disputed Domain Names be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: August 9, 2020
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