WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Wikimedia Foundation, Inc. v. Li Anyi

Case No. D2015-1893

1. The Parties

The Complainant is Wikimedia Foundation, Inc. of San Francisco, California, United States of America ("United States"), represented internally.

The Respondent is Li Anyi of Xuzhou, Jiangsu, China.

2. The Domain Name and Registrar

The disputed domain name <wikipewdia.org> is registered with Xin Net Technology Corp. (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 22, 2015. On October 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 26, 2015, 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.

On October 30, 2015, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On November 2, 2015, the Complainant submitted its request that English be the language of the proceeding by email to the Center. The Respondent did not submit any comments within the specified due date.

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 and 4, the Center formally notified the Respondent of the Complaint in English and Chinese, and the proceeding commenced on November 5, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 25, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 26, 2015.

The Center appointed Sok Ling MOI as the sole panelist in this matter on December 8, 2015. 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, founded in 2003, is a nonprofit charitable organization dedicated to encouraging the growth, development and distribution of free, multilingual, educational content. Today, it manages sixteen free knowledge projects such as Wikimedia Commons (a shared media repository of almost 25 million freely usable images, sound files and video files), Wiktionary (an online dictionary and thesaurus), Wikivoyage (a free, worldwide travel guide), and first and foremost, Wikipedia (a free, on-line encyclopedia founded in 2001, compiled, edited and maintained by over 70,000 active contributors). Today, Wikipedia offers over 35,5 million articles in 288 languages, has over 500 million unique visitors each month, and is consistently ranked as one of the top ten most popular web properties in the world.

The Complainant owns several trade mark registrations for WIKIPEDIA in the United States, including the following:

The Complainant registered the domain name <wikipedia.org> on January 13, 2001, and also owns various registrations for domain names that incorporate its registered trade mark WIKIPEDIA, including <wikipedia.us>, <wikipeddia.org> and <wikipediia.org>.

The disputed domain name <wikipewdia.org> was registered by the Respondent on September 20, 2015, long after the Complainant's first use of (in 2001) and registration of the trade mark WIKIPEDIA (in 2006). As at the date of this decision, the disputed domain name resolves and redirects to a webpage containing various commercial links in Chinese.

5. Parties' Contentions

A. Complainant

The WIKIPEDIA marks are unique and proprietary to the Complainant, and belong exclusively to the Complainant. The WIKIPEDIA marks are extremely well known within the United States and throughout the world such that when consumers see the disputed domain name, they will likely assume the associated website will direct them to one of the Complainant's websites and the goods and services that the Complainant provides in connection therewith.

A1. The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights:

The Complainant's trade mark, WIKIPEDIA, is inherently distinctive and is a dominant feature of the disputed domain name, <wikipewdia.org>. The addition of a single letter in the middle of the mark – the central "w" in "wikipewdia" - does little to diminish the visual similarity of the disputed domain name. Rather, it increases the probability of user confusion.

Moreover, the disputed domain name is a prime example of typosquatting, a profit generating process used to capitalize off user confusion. The disputed domain name comprised of slight variations of the WIKIPEDIA marks is confusingly similar, and as such, is likely to deceive the general public.

A2. The Respondent has no rights or legitimate interests in respect of the disputed domain name:

The Respondent is not a licensee of or otherwise affiliated with the Complainant, and the Complainant has never authorized or otherwise condoned or consented to the Respondent's registration of the disputed domain name.

In addition, the Respondent is not commonly known by the disputed domain name.

Finally, the Respondent has not put the disputed domain name to any legitimate use. The Respondent is using the disputed domain name to redirect users to the Chinese site "www.pd.ok363.com" filled with adware. It is also reasonable to infer that the Respondent earns a monetary fee for redirecting users to third party sites. Using a well-known mark to deceive Internet users and promote advertising is not a bona fide or fair use.

A3. The disputed domain name was registered and is being used in bad faith:

The Respondent's use of the disputed domain name is a form of typosquatting. As a result of the confusing similarity between the disputed domain name and the Complainant's trade mark, the probability of diversion of Internet traffic from the Complainant's website to the Respondent's website is high. The Respondent has intentionally attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the Complainant's well-known marks.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

6.1. Language of the Proceeding

Pursuant to paragraph 11(a) of the Rules, unless otherwise agreed by the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.

Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the parties are treated fairly and given a fair opportunity to present their respective case.

The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding.

On the record, the Respondent appears to be a Chinese individual and is thus presumably not a native English speaker. Notwithstanding, the Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:

(a) the disputed domain name is registered in Latin characters, rather than Chinese script;

(b) the disputed domain name resolves to a website with contents (with commercial links) in English;

(c) the Respondent has registered several other domain names comprising Latin characters, e.g., <alphabte.net>, <alphabte.org>, <baixong.com>, <baiximg.com>, <diaoyuislands.info>, <diaoyuislands.biz>, <wikipesia.net> and <wikipwdia.net>, based on a reverse WhoIs search conducted independently by the Panel using the Respondent's email address.

Additionally, the Panel notes that:

(a) the Center has notified the Respondent of the proceeding in both Chinese and English;

(b) the Center informed the Respondent that it would accept a Response in either English or Chinese; and

(c) the Respondent has been given the opportunity to present its case in this proceeding and to respond to the issue of the language of the proceeding but has chosen not to do so.

Considering the above circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. To require the Complaint to be translated into Chinese would in the circumstances of this case cause an unnecessary cost burden to the Complainant and unfairly disadvantage the Complainant. The proceeding would be unnecessarily delayed.

Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that (i) it shall accept the Complaint and all supporting materials as filed in English; and (ii) English shall be the language of the proceeding and the decision will be rendered in English.

6.2. Discussion and Findings

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements to obtain an order for the disputed domain name to be transferred:

(i) the disputed domain name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

On the basis of the evidence introduced by the Complainant, the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel accepts that the Complainant has rights in the WIKIPEDIA mark by virtue of its use and registration of the same as a trade mark.

The disputed domain name effectively incorporates the Complainant's trade mark WIKIPEDIA in its entirety. The inclusion of an extra letter "w" before the letter "d" in "wikipewdia" is not sufficient to distinguish the disputed domain name from the Complainant's trade mark WIKIPEDIA. The full disputed domain name <wikipewdia.org> is a foreseeable typographical variant of the Complainant's trade mark WIKIPEDIA and domain name registration <wikipedia.org>. The consensus view of previous UDRP panels is that a domain name which contains a common or obvious misspelling of a trade mark will normally be found to be confusingly similar to such trade mark, where the misspelled trade mark remains the dominant or principal component of the domain name.

The addition of the generic Top-Level Domain ("gTLD") ".org" does not impact on the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant's trade mark.

Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trade mark.

Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, the Complainant bears the burden of establishing that the Respondent lacks rights or legitimate interests in the disputed domain name. However, once the Complainant makes a prima facie showing under paragraph 4(a)(ii), the burden of production shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:

(i) before any notice to it of the dispute, the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) the Respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or

(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao internet foshan co, ltd, WIPO Case No. D2013-0974.

The Complainant has clearly established that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the WIKIPEDIA trade mark or register the disputed domain name. There is also no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term "wikipewdia".

The Panel is satisfied that the Complainant has made out a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish any rights or legitimate interests in the disputed domain name.

The Panel notes that the disputed domain name resolves and redirects to an active website which appears to be a parking page with commercial links to miscellaneous goods and services by third parties. The consensus view of previous UDRP panels is that use of a domain name to post parking and landing pages or pay-per-click links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a "bona fide offering of goods or services" or from "legitimate noncommercial or fair use" of the domain name. The Panel further notes that there is a notice on the website offering the disputed domain name for sale. Such use of the disputed domain name is neither legitimate nor fair.

The Respondent has failed to file a Response, and is in any event not able to successfully rebut the Complainant's prima facie case.

Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:

(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the disputed domain name; or

(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's websites or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's websites or location or of a product or service on the Respondent's website or location.

Given the global fame and recognition of the Complainant's trade mark WIKIPEDIA, it is reasonable to expect that the Respondent has prior knowledge of the Complainant's rights at the time of its registration of the disputed domain name. Registration of a domain name that is a confusingly similar variant of the Complainant's trade mark suggests opportunistic bad faith.

Having found that the disputed domain name is a typographical variant of the Complainant's trade mark WIKIPEDIA, it is foreseeable that Internet users attempting to enter the address for the Complainant's website "www.wikipedia.org" in a browser and making a minor typographical error will be diverted to the Respondent's website which contains commercial links to miscellaneous goods and services. The consensus view of previous UDRP panels is that a domain name registrant is normally deemed responsible for content appearing on a website at its domain name, even if such registrant may not be exercising direct control over such content - for example, in the case of advertising links appearing on an "automatically" generated basis.

The Panel notes the presumption that the Respondent or a third party stands to profit or make a "commercial gain" from advertising revenue by such an arrangement trading on third party trade marks. In the Panel's opinion, such links clearly seek to capitalise on the trade mark value of the Complainant's WIKIPEDIA trade mark resulting in misleading diversion.

The Panel therefore determines that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation, or endorsement of the Respondent's websites. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case.

Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) of the Policy.

7. Decision

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 <wikipewdia.org> be transferred to the Complainant.

Sok Ling Moi
Sole Panelist
Date: December 23, 2015