Bazaarvoice, Inc. v. 铁 陈
Claim Number: FA2306002048345
Complainant is Bazaarvoice, Inc. (“Complainant”), represented by Katharyn Kirkham, Texas, USA. Respondent is 铁 陈 (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bazaarvoice-aus.com> and <bazaarvoice-aus.net>, registered with Name.com, Inc..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on June 9, 2023; Forum received payment on June 9, 2023.
On June 12, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <bazaarvoice-aus.com> and <bazaarvoice-aus.net> domain names are registered with Name.com, Inc. and that Respondent is the current registrant of the names. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 June 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 3, 2023 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@bazaarvoice-aus.com, postmaster@bazaarvoice-aus.net. Also on June 13, 2023, 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 July 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant Bazaarvoice, Inc. is the market leader in the ratings and review industry.
Complainant asserts rights in the BAZAARVOICE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) and multiple other trademark agencies. Complainant also asserts common law rights in the BAZAARVOICE mark.
The <bazaarvoice-aus.com> and<bazaarvoice-aus.net> domain names are identical or confusingly similar to Complainant’s mark because the at-issue domain names each incorporate the BAZAARVOICE mark in its entirety and merely add “aus” and a hyphen as well as either the “.com” or “.net” generic top level domain (“gTLD”)
Respondent lacks rights or legitimate interests in the at-issue domain names. Respondent is not commonly known by the at-issue domain names, nor has Respondent been authorized by Complainant to use the BAZAARVOICE mark. Respondent has also not used the at-issue domain names in connection with a bona fide offering of goods or services. Rather, Respondent has made no demonstrable preparations to make bona fide use the at-issue domain names. Respondent is engaging in a phishing scheme instead.
Respondent registered and uses the at-issue domain names in bad faith. Respondent is passively holding one of the disputed domain names. Respondent is engaged in a phishing scheme as to the other. Respondent has a history of bad faith registration. Lastly, Respondent had actual knowledge of Complainant’s rights in the BAZAARVOICE mark prior to registration of the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the BAZAARVOICE mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the BAZAARVOICE trademark.
Respondent uses the at-issue domain names to facilitate the deceitful collection of personal information and to hold passively.
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”).
The at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for the BAZAARVOICE mark, as well as its ownership of any additional registration for such mark with any other trademark registrar, is sufficient to demonstrate Complainant’s rights in a mark for the purposes of Policy ¶ 4 (a)(I). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).
Respondent’s <bazaarvoice-aus.com> and <bazaarvoice-aus.net>domain names each contain Complainant’s entire BAZAARVOICE trademark followed by a hyphen and the geographical term “aus” with all followed by the top-level domain name “.com” or “net”. The differences between Respondent’s domain names and Complainant’s trademark fail to distinguish either <bazaarvoice-aus.com> or <bazaarvoice-aus.net> from Complainant’s BAZAARVOICE mark under Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <bazaarvoice-aus.com> and <bazaarvoice-aus.net> domain names are each confusingly similar to Complainant’s BAZAARVOICE trademark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark); see also, Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain names. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of either at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain names identifies the domain names’ registrant as “铁 陈” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by either at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by either <bazaarvoice-aus.com> or <bazaarvoice-aus.net> for the purposes of Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name).
Respondent’s <bazaarvoice-aus.com> domain name addresses a website that displays a login and registration page where site visitors can purportedly create accounts. However, Respondent is likely making use the online form to deviously collect personal information from third-parties. Not surprisingly, phishing for personal information does not qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent currently holds the <bazaarvoice-aus.net> domain name passively as browsing to the domain name returns an error message indicating that a website cannot be reached. Respondent’s failure to actively use <bazaarvoice-aus.net> shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”).
Given the forgoing, Complainant satisfies its initial burden and without opposition conclusively demonstrates, pursuant to Policy ¶4(a)(ii), Respondent’s lack of rights and lack of legitimate interests in respect of each at-issue domain name.
As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent has acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent’s suffered an adverse prior UDRP decision involving Complainant’s BAZAARVOICE trademark and multiple confusingly similar domain names. Respondent’s history reveals a pattern of domain name abuse and thus evidences Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See Microsoft Corporation and Skype v. zhong biao zhang / Unknown company / zhong zhang, FA1401001538218 (Forum Feb. 20, 2014) (holding that the respondent’s registration of three domain names incorporating variants of the complainant’s SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)); see also, Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
Next as mentioned above regarding rights and legitimate interests, Respondent’s <bazaarvoice-aus.com> and related website are most likely being used to facilitate a phishing scheme intent on collecting personal information from third-parties. Respondent’s use of <bazaarvoice-aus.com> to pass itself off as Complainant in furtherance of phishing demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See McKinsey & Company, Inc., and McKinsey Holdings, Inc. v. Privacy Protection, report abuse to / Registrar: DELTA-X Ltd., FA1409001580883 (Forum Oct. 25, 2014) (holding that the respondent had engaged in phishing, which is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii), when the respondent used the at-issue domain name in an attempt to obtain Internet users’ personal information including their driver’s license number and name); see also, Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
As also mentioned above regarding rights and legitimate interests, Respondent currently holds its confusingly similar <bazaarvoice-aus.net> domain name passively. Doing so indicates Respondent’s bad faith registration and use of such domain name. See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”). Indeed, the confusingly similar inactive <bazaarvoice-aus.net> domain name may be easily repurposed for any of a variety of bad faith objectives including but not limited to phishing.
Moreover, Respondent had actual knowledge of Complainant’s rights in the BAZAARVOICE mark when it registered <bazaarvoice-aus.com> and <bazaarvoice-aus.net> as domain names. Respondent’s actual knowledge is evident from the notoriety of the BAZAARVOICE trademark and from Respondent’s prior dispute with Complainant’s regarding the BAZAARVOICE trademark as discussed elsewhere herein. Respondent’s registration and use of the at-issue domain names with knowledge of Complainant’s rights in BAZAARVOICE further shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bazaarvoice-aus.com> and <bazaarvoice-aus.net> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 12, 2023
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