DECISION

 

Vantage Solutions, LLC v. zhu yan

Claim Number: FA2312002076392

 

PARTIES

Complainant is Vantage Solutions, LLC ("Complainant"), represented by Drew M. Smith of Resonate IP, LLC, Oregon, USA. Respondent is zhu yan ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <knp376.com>, ('the Domain Name') registered with Gname.com Pte. Ltd.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 22, 2023; Forum received payment on December 22, 2023.

 

On December 27, 2023, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <knp376.com> 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 January 2, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of January 22, 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@knp376.com. Also on January 2, 2024, the Chinese and English 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 in Chinese and English.

 

On January 23, 2024 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

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 as the Domain Name points to an English language site. After considering the circumstances of the present case, the Panel decides that the proceedings should be in English.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant is the owner of the mark TEXT MECHANIC registered in the USA for Software as a service with first use recorded as 2010.

 

The Respondent is not authorised by the Complainant or commonly known by the Domain Name.

 

The Domain Name registered in 2023 has been pointed to a clone of the Complainant's web site purporting to offer competing services to the Complainant. This is not a bona fide offering of goods or services or legitimate non commercial fair use. It is registration and use in bad faith designed to impersonate the Complainant and confuse Internet users to believe they are on the Complainant's web site when they are not. The Respondent has also used the Complainant's source code on Google Search.

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of the mark TEXT MECHANIC registered in the USA for Software as a service with first use recorded as 2010.

 

The Domain Name registered in 2023 has been pointed to a clone of the Complainant's web site.

 

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 first limb of the Policy requires a Complainant to prove that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.

 

The Domain Name consists of the character string 'knp376' and the gTLD .com. The Domain Name does not bear any resemblance to the Complainant's trade mark TEXT MECHANIC, not containing any part of it. Accordingly the Domain Name is not confusingly similar to the Complainant's TEXT MECHANIC mark.

 

Since the Complainant has failed at the first hurdle it is not necessary to consider the issues of Rights or Legitimate Interests or Registration and Use in Bad Faith. Healthy Pets, Inc. d/b/a Pet Health Solutions v. Kwangpyo Kim, FA 1976154 (Forum Jan. 24, 2022) ("[S]ince Complainant must prove all three elements of Policy ¶ 4(a) under the Policy, Complainant's failure to prove one of the elements makes further inquiry into the remaining elements unnecessary.").

 

        Reverse Domain Name Hijacking

The Respondent did not reply to this Complaint. However the failures in this Complaint inevitably bring considerations of Reverse Domain Name Hijacking into question. 

 

The Complainant is an established business which has successfully used the Policy before in an unrelated case to obtain the transfer of a domain name, because in that unrelated case the domain name did contain the Complainant's mark. In this case the Complainant has not provided any evidence of trade mark Rights sufficient to properly call for the transfer of the Domain Name which bears no relation to the Complainant's trade mark. On balance the Panel believes that exercising reasonable skill and judgement the Complainant must have realised that whilst it may have a right to challenge use of the Domain Name using other channels such as an Internet Service Provider takedown or the Courts it had no right to call for the transfer of the Domain Name in this case under the UDRP and this Complaint was bound to fail. The Panel makes a finding of Reverse Domain Name Hijacking. See Clean Slate Credit Solutions v. Jake Rustenhoven, FA 1924095 (Forum Jan. 8, 2021).

 

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <knp376.com> domain name REMAIN WITH Respondent.

 

 

 

 

Dawn Osborne, Panelist

Dated: January 23, 2024