WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tumblr, Inc. v. Zhou Xiangsheng
Case No. D2013-0242
1. The Parties
The Complainant is Tumblr, Inc. of New York, United States of America represented internally.
The Respondent is Zhou Xiangsheng of HuBei, China.
2. The Domain Name and Registrar
The disputed domain name <tumbllr.com> is registered with Dynadot, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2013. On February 5, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 6, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 7, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 27, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 28, 2013.
The Center appointed Torsten Bettinger as the sole panelist in this matter on March 6, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant is a social media and networking service that was founded in 2007. Since its inception, the service has rapidly gained popularity, and by January of 2013 the Complainant’s website at “www.tumblr.com” was hosting over 91 million blogs and receiving over 140 million unique visitors per month. The Complainant’s TUMBLR mark is registered with the United States Patent and Trademark Office on November 24, 2009, and has a first use in commerce date in February 2007.
The disputed domain name was registered on February 27, 2010, and has been used in connection with a redirection scheme which routes Internet users to a landing page at “www.click.livesearchnow.com.” According to the materials submitted with the Complaint, this website has been linked to a browser hijacking virus, which redirects targeted users to third-party websites containing advertising and/or sign-up services.
5. Parties’ Contentions
The Complainant asserts that each of the elements specified in paragraph 4(a) of the Policy has been satisfied.
With regard to the first element of the Policy, the Complainant states that the disputed domain name is confusingly similar to its registered TUMBLR trademark. The disputed domain name contains an additional “l” in the second-level text, and as such is an example of typosquatting.
Concerning the second element of the Policy, the Complainant confirms that it is in no way affiliated with the Respondent, and has not licensed or permitted the Respondent to use its trademark in any fashion. The Complainant notes that the Respondent’s only use of the disputed domain name has been in connection with an advertising and redirection scheme, which ostensibly provides the Respondent with click-through revenue. Additionally, the Respondent’s use of the disputed domain name may expose Internet visitors to harmful virus software, which cannot be construed as a bona fide use of the disputed domain name. The Complainant notes that there is nothing in either the WhoIs records or available on the disputed domain name to indicate that the Respondent is commonly known by any name corresponding to the disputed domain name. Finally, as the redirection of visitors to advertising appears to be commercial in nature, the Respondent cannot be making any legitimate noncommercial or fair use of the disputed domain name.
With regard to the final element of the Policy, the Complainant notes that its TUMBLR trademark was registered well prior to the Respondent’s selection of the disputed domain name. The Complainant notes that previous UDRP decisions have held typosquatting to constitute evidence of a respondent’s bad faith, and further states that the use of the disputed domain name to expose Internet users to invasive virus software is also indicative of bad faith intent. Finally, the Complainant alleges that the use of the disputed domain name to garner click-through revenue, via the advertisements to which Internet users are re-directed, constitutes evidence of bad faith registration and use under paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
In order to succeed under the first element of the Policy, the Complainant must demonstrate both its rights in the relevant trademark and that the disputed domain name is identical or confusingly similar to said trademark. Here, the Complainant has provided evidence of its TUMBLR trademark registration and, accordingly, the Panel finds that the Complainant has demonstrated its rights for the purposes of the Policy.
The textual string of the disputed domain name is “tumbllr”, which merely adds an additional “l” to the Complainant’s mark. This minor alteration does not change the overall impression created by the disputed domain name, and appears to constitute a classic case of typosquatting. See Allstate Insurance Company v. PrivacyProtect. org / Purple Bucquet, WIPO Case No. D2011-0003 and Intesa Sanpaolo S.p.A. v. Wei Jinping, WIPO Case No. D2011-1321.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s TUMBLR trademark, and that the Complainant has established the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. It is, however, the consensus view among UDRP panelists that if the complainant makes a prima facie case that the respondent has no rights or legitimate interests, and the respondent fails to show one of the three circumstances under paragraph 4(c) of the Policy, then the respondent may lack rights or legitimate interests in the domain name. See Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
In this case, the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant confirms that it has not licensed or authorized the Respondent to use its TUMBLR mark in any fashion and that there is no connection between the Respondent and the Complainant. There is no evidence on the present record, or in the publicly-available WhoIs data, to indicate that the Respondent is commonly known by the disputed domain name or a name corresponding to the disputed domain name. Additionally, the website is used to direct visitors to a website which disseminates virus software, resulting in the auto-direction of users’ browsers to websites where pay-per-click links are displayed. The Respondent presumably generates revenue from this malicious activity, which cannot constitute a bona fide use of the disputed domain name. Due to the commercial component of this scheme, and the redirection of Internet traffic to sponsored links, the Respondent clearly is not making any noncommercial or fair use of the domain name. See Donald J. Trump v. Mediaking LLC d/b/a Mediaking Corporation and Aaftek Domain Corp., WIPO Case No. D2010-1404.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the requirement of paragraph 4(a)(ii) is also satisfied.
C. Registered and Used in Bad Faith
The Complainant has provided evidence that its TUMBLR mark has been registered for roughly six years, and for three years prior to the creation of the disputed domain name. The Complainant has also demonstrated that its TUMBLR mark is used in connection with its popular social networking website. The word “tumblr” has no dictionary meaning, and neither does the misspelled version adopted by the Respondent, “tumbllr”. In the absence of any explanation to the contrary, the Panel finds it highly unlikely that the Respondent selected the disputed domain name without knowledge of the Complainant’s mark and brand, and further that the Respondent likely chose the disputed domain name in order to capitalize on Internet traffic intended for the Complainant’s website.
By registering a domain name which represents a minor spelling variation from the Complainant’s TUMBLR mark, and using the disputed domain name to redirect to a website which infects visitors’ computers with a common browser virus, the Respondent’s bad faith intent is clear. Moreover, as the Respondent likely collects click-through revenue from the pay-per-click pages to which these unlucky Internet users are re-directed, the Respondent appears to be diverting Internet traffic for commercial gain, as prohibited under paragraph 4(b)(iv) of the Policy.
The Panel therefore concludes that the requirement of paragraph 4(a)(iii) of the Policy has also been met.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <tumbllr.com> be transferred to the Complainant.
Date: March 20, 2013