GoFundMe Inc. v. Domain Manager
Claim Number: FA2104001941667
Complainant is GoFundMe Inc. (“Complainant”), represented by Gail Podolsky of Carlton Fields Jorden Burt, P.A., Georgia, USA. Respondent is Domain Manager (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gofundme.net>, registered with Alibaba Cloud Computing (Beijing) 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 15, 2021; the Forum received payment on April 15, 2021. The Complaint was received in English.
On April 18, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <gofundme.net> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) 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 April 21, 2021, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of May 11, 2021 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@gofundme.net. Also on April 21, 2021, 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 May 17, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese.
Complainant has alleged that because Respondent is conversant and proficient in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) it has the discretion to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. 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). Complainant contends that Respondent appears to be conversant and proficient in the English language because the content of Respondent’s <gofundme.net> website is in English.
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.
A. Complainant
Since at least as early as 2010, Complainant has owned and operated a platform to connect people in need with others who want to help them financially. Complainant has rights in the GOFUNDME mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,201,895, registered September 4, 2012). Respondent’s <gofundme.net> domain name is identical to Complainant’s GOFUNDME mark as it contains Complainant’s entire mark and merely adds the generic-top-level-domain “.net.”
Respondent lacks rights or legitimate interests in the <gofundme.net> domain name. Respondent is not commonly known by the disputed domain name nor is Respondent authorized to use the GOFUNDME mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent uses the GOFUNDME mark in a manner unrelated to Complainant’s services.
Respondent registered and uses the <gofundme.net> domain name in bad faith. Respondent uses the disputed domain name to divert Internet users for commercial gain. Respondent also had actual knowledge of Complainant’s rights in the GOFUNDME mark prior to registering the disputed domain name, evidenced by the Respondent’s use of the entire mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the <gofundme.net> domain name was registered on April 12, 2016.
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”).
Complainant asserts rights in the GOFUNDME mark through Complainant’s registration of the mark with the USPTO (e.g., Reg. No. 4,201,895, registered September 4, 2012). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per 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 demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Complainant has demonstrated rights in the GOFUNDME mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <gofundme.net> domain name is identical to Complainant’s GOFUNDME mark as it contains Complainant’s entire mark and merely adds the generic-top-level-domain “.net.” Adding a gTLD to a mark fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Textron Innovations Inc. v. Textron Sistemi di Fissaggio srl, Fa 1732602 (Forum July 6, 2017) (holding that “Respondent’s <textron.net> is identical to Complainant’s TEXTRON mark.”). Therefore, the Panel finds that the disputed domain name is identical to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights or legitimate interests in the <gofundme.net> domain name as Respondent is not commonly known by the disputed domain name nor is Respondent authorized to use the GOFUNDME mark. When a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1620789 (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 for the disputed domain name lists the registrant as “Domain Manager,” and Complainant argues there is no other evidence to suggest that Respondent was authorized to use the GOFUNDME mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <gofundme.net> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain name in a manner unrelated to Complainant’s services. Using a confusingly similar domain name to display content unrelated to a complainant’s content may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”). Here, Complainant provides screenshots showing the disputed domain name, as of April 15, 2021, resolved to a website that contained images of certain photographs, one of which hyperlinks to livescience.com, which has no relation or affiliation with Complainant. Another of these photographs advertises “2019’s Top 5 VPS Hosting Providers” and hyperlinks to <i.feeds.me/vps>. Therefore, the Panel finds that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and uses the <gofundme.net> domain name in bad faith as Respondent intentionally diverts Internet users to its website for commercial gain. Using a disputed domain name to divert Internet users for commercial gain can demonstrate bad faith per Policy ¶ 4(b)(iv). See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Here, Complainant provides screenshots showing that the disputed domain name contained hyperlinks to other domain names. The Panel agrees with Complainant, and finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Finally, Complainant contends that Respondent registered the <gofundme.net> domain name in bad faith as Respondent had actual knowledge of Complainant’s rights to the GOFUNDME mark prior to registration of the disputed domain name based on Respondent’s use of the entire mark. Here, Complainant provides screenshots showing Complainant has provided a platform used by more than 120 million donations, from more than 150 countries, to contribute over $9 billion dollars to a variety of causes. Thus, the Panel finds that Respondent’s incorporation of this identical well-known mark into its domain constitutes bad faith registration.
Therefore, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gofundme.net> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: May 26, 2021
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