[Name Redacted] v. ludashi us / jack zhang
Claim Number: FA2208002009845
Complainant is [Redacted][i] (“Complainant”), Australia. Respondent is ludashi us / jack zhang (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <[redacted].com> (“the Domain Name”), registered with NameSilo, LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on August 26, 2022. Forum received payment on August 26, 2022.
On August 26, 2022, NameSilo, LLC confirmed by e-mail to Forum that the Domain Name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC 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 August 31, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 20, 2022 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@[redacted].com. Also on August 31, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On September 18 and 20, 2022, Complainant submitted Additional Submissions to Forum, without proof of service on the opposing party as required by Forum's Supplemental Rule 7.
On September 28, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 is a published author, artist and psychologist. She has used her name in publishing her work widely including the publication of over 10 books, a range of magazines, online journals, YouTube videos, lectures, readings and other literary and community endeavors related to creative arts. The complainant has been writing and publishing poetry for over twenty years, and first established a website presence in 2006 with the publication of her first book.
Complainant previously used the Domain Name to promote her writing, books, artwork, and consultancy as an editor, educator, and mentor. She erroneously neglected to renew the domain name registration and presently operates the website at “www.[Redacted].com.au” to promote her products and services under the [Redacted] trademark, in which she has common law rights.
The Domain Name is identical to the Complainant’s trademark, as it reproduces the trademark in its entirety with the mere addition of the generic Top Level Domain (“gTLD”) “.com”.
Respondent does not have any rights or legitimate interests in the domain name. Respondent is not commonly known by the domain name and has never acquired any trademark or service mark rights in the domain name. Complainant has never authorized Respondent to use the domain name or the mark in any way and there is no evidence of any commercial relationship between Complainant and Respondent which would entitle Respondent to the trademark.
The domain name was seemingly registered in 2019 by Respondent and currently resolves to an online illicit /obscene website in an Asian language. No legitimate business is attached to the domain name based on the current commerce presently promoted at the website, which is highly offensive, derogatory, defamatory, and harassing to Complainant, who is concerned that the website is traumatizing to individuals with whom Complainant may work as a writer/consultant and finds it personally and professionally distressing.
Respondent is not making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
By using the domain name in connection with a website engaging in obscene, illicit content that is illegal in many jurisdictions, Respondent is not using the domain name in connection with a bona fide offering of goods or services.
Complainant’s services under the trademark [Redacted] had been extensively promoted on the Internet for several years before the registration of the Domain Name by Respondent and Respondent was most likely aware of Complainant’s trademark when registering the Domain Name in 2019. In doing so shortly after the Domain Name lapsed, having been used by Complainant for years, Respondent acted in opportunistic bad faith. In redirecting users to an obscene site, Respondent is intentionally attempting to attract Internet users to its website for commercial gain, by causing a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
C. Additional Submissions
Complainant’s first Additional Submission sought redaction of Complainant’s name in association with the Complaint. Complainant’s second Additional Submission provided further evidence in support of Complainant’s claim to unregistered trademark rights. The Panel has taken both Additional Submissions into account.
Complainant has established all the elements entitling her to relief.
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 has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The Domain Name was registered on November 28, 2021. It resolves to a Chinese language website promoting pornography.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the Domain Name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s [Redacted] mark when Respondent registered the Domain Name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
Should Complainant’s name be redacted?
Complainant requests that her identity, including the Domain Name, be redacted from this decision or that the decision be privately archived, stating:
“My privacy is of grave concern, and I do not want my name to hold any association with the explicit obscene content on the website in question, nor any association with the respondent. I am terrified of the situation escalating. I have evidence and heard from individuals who have received threats in these situations. For this reason, I have a specific request for the Forum to aide my privacy, safety, and identity. I do understand the ICANN rules and that my name being attached to the domain already makes it “public,” but I please ask for consideration that the case be privately archived or my name (in all forms including the domain) be redacted. A full choice to archive the case privately would be my most desired outcome. It has taken me a very long time to make this application due to fears of repercussion, identity theft or further harassment and defamation.”
Paragraph 4(j) of the Policy provides:
“All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.”
The Panel has been unable to find a case in which a complainant’s name has been redacted from a UDRP decision. The only published decisions the Panel has found in which the name of a party has been redacted are decisions in which the domain name was registered in the name of a victim of identity theft, in which case it would be grossly unfair for the respondent to be publicly accused or found guilty of cybersquatting.
In the present case this decision vindicates Complainant from any suggestion that she has promoted pornography.
However, having regard to Complainant’s legitimate concerns as to her privacy and safety, the Panel determines that this is an exceptional case in which it is appropriate that the name of Complainant, her trademark and the Domain Name, which both contain her name, should be redacted from the published decision.
DECISION
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 Domain Name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: October 1, 2022
[i] The Panel has redacted Complainant’s name, mark and the Domain Name from this Decision. However, the Panel has attached as Annex 1 to this Decision an unredacted version of this Decision in order to enable the Registrar to transfer the Domain Name to Complainant. The Panel has authorized Forum to transmit Annex 1 to Complainant, Respondent and the Registrar as part of the Order in this proceeding and has indicated that Annex 1 to this Decision shall not be published due to the exceptional circumstances of this case.
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