DECISION

 

ContextLogic Inc. v. giro giro

Claim Number: FA2312002076113

PARTIES

Complainant is ContextLogic Inc. ("Complainant"), represented by Caitlin R. Byczko of Barnes & Thornburg LLP, Indiana, USA. Respondent is giro giro ("Respondent"), Australia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wish26.cc>, registered with Gname.com Pte. Ltd..

 

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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 20, 2023; Forum received payment on December 20, 2023.

 

On December 21, 2023, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <wish26.cc> domain name is registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the name. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. 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 December 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 16, 2024 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@wish26.cc. Also on December 26, 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 January 17, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

Complainant is the owner and operator of the well-known e-commerce platform WISH, available via www.wish.com and the WISH mobile application. Complainant has been using the trademark WISH in connection with a variety of goods and services since at least as early as 2011.

 

Complainant owns many USPTO registrations for WISH and its WISH logos as well as other registrations worldwide which establish rights for the purpose of the UDRP.

 

Respondent's at-issue domain name is identical or confusingly similar to Complainant's WISH mark as the mark is included in the at-issue domain name and the only difference are the addition of the numeral "26" and ".cc" top-level to form the domain name.

 

Respondent lacks rights and legitimate interests in the <wish26.cc> domain name. Respondent has never been known as WISH or any variation thereof. Respondent is not affiliated with Complainant or authorized to use the WISH mark, used a privacy service, and has not used the domain name in connection with a bona fide offering of goods or services. Instead, the at-issue domain name addresses a website that appears to be a legitimate version of Complainant's website; offering goods for sale that would presumably result in monetary gain to Respondent. If a consumer attempted to make a purchase on that website, they would be providing personal information and potentially paying Respondent directly, who may then use the information to defraud and scam unsuspecting customers.

 

Respondent registered and uses the at-issue domain name in bad faith. Respondent had constructive or actual notice of Complainant's rights in WISH prior to registering <wish26.cc> and is using the domain name in connection with a website displaying Complainant's trademark that appears to be intentionally created to deceive consumers as to the source, sponsorship, affiliation or endorsement of the domain name and its website thereby disrupting Complainant's business. Respondent's bad faith may be inferred since the domain name contains a well-known mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in WISH.

 

Respondent is not affiliated with Complainant and is not authorized to use Complainant's trademarks in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in WISH.

 

Respondent uses the at-issue domain name to pass off as Complainant and address a website that purports to offer products for sale. The domain name and website may be used to defraud third parties.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The at-issue domain is confusingly similar to a trademark in which Complainant has rights.

 

Any of Complainant's USPTO registrations for its WISH mark is adequate evidence of Complainant's rights in a mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant's rights in the HOME DEPOT mark).

 

Respondent's <wish26.cc> domain name contains Complainant's WISH trademark followed by the numeral "26" with all followed by the ".cc" top-level domain name. The differences between Complainant's trademark and Respondent's at-issue domain name fail to distinguish the domain name from Complainant's mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent's <wish26.cc> domain name is confusingly similar to Complainant's WISH 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.").

 

Rights or Legitimate Interests

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, absent evidence of Policy ¶ 4(c) circumstances Complainant's prima facie showing acts conclusively.

 

Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. 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 the at-issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and "Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.").

 

The WHOIS information for <wish26.cc> ultimately indicates that "giro giro" is the domain name's registrant and there is nothing in the record that tends to otherwise prove that Respondent is known by the <wish26.cc> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent uses the confusingly similar <wish26.cc> domain name to address a website dressed to appear as if it might be Complainant's genuine website. The at-issue domain name directs internet users to the <wish26.cc> website. The website purports to offer products for sale notwithstanding that the website may be used to defraud internet visitors into giving up personal information and perhaps funds for which nothing is received in return. Respondent's use of <wish26.cc> to attempt to pass itself off as Complainant in this manner is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant's mark and various photographs related to the complainant's business).

 

Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and shows Respondent's lack of rights and lack of legitimate interests in respect of the at-issue domain name.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, bad faith circumstances are present which lead the Panel to conclude that Respondent acted in bad faith pursuant to the Policy.

 

First, Respondent's at-issue domain name addresses Respondent's <wish26.cc> website. The website mimics Complainant's genuine website and purports to offer products for sale. The domain name and its website deceive internet users into falsely believing that they are sponsored by Complainant. Respondent's use of the confusingly similar domain name in this manner is disruptive to Complainant's business and designed to attract internet users to Respondent's website by capitalizing on the confusion that Respondent created between its <wish26.cc> domain name and Complainant's WISH trademark. Respondent's use of the <wish26.cc> domain name demonstrates Respondent's bad faith registration and use of <wish26.cc> under Policy ¶ 4(b)(iii) and  Policy ¶ 4(b)(iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent's registration and use of the at-issue domain name, which displayed a website virtually identical to the complainant's website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (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).

 

Next, Respondent may be using the at-issue domain name to facilitate a phishing scheme. Respondent's website requires putative consumers to divulge private financial information to purchase products. Further, such customers may never receive any value after sending funds to Respondent. Respondent's use of <wish26.cc> to engaging in phishing demonstrates Respondent's bad faith under the policy. See 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)."); see also, Funding Circle Limited v. tim mcelwain / timmcelweain, FA 2003934 (Forum Aug. 4, 2022) ("Respondent uses the at-issue domain name to facilitate [a] phishing scheme designed to swindle funds from Complainant's customers. Such use of the confusingly similar domain name indicates Respondent's bad faith under the Policy.").

 

Moreover, Respondent had actual knowledge of Complainant's rights in the WISH mark when it registered <wish26.cc> as a domain name. Respondent's prior actual knowledge of Complainant's trademark is evident from the notoriety of Complainant's mark and from Respondent's use of <wish26.cc> to pass off as Complainant and mimic Complainant's genuine website. Respondent's registration and use of <wish26.cc> with knowledge of Complainant's rights in WISH further shows Respondent's bad faith registration and use of <wish26.cc> 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).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <wish26.cc> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Paul M. DeCicco, Panelist

Dated: January 18, 2024