The Complainant is Blackbaud, Inc., United States of America (“United States”), represented by Soteria LLC, United States.
The Respondent is 杨智超 (Yang Zhi Chao aka Zhi Chao Yang), China.
The disputed domain name <justgviing.com> is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2022. On February 14, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 15, 2022, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 15, 2022 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint in English on February 16, 2022.
On February 15, 2022, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On February 15, 2022, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amendment to 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 in English and Chinese of the Complaint, and the proceedings commenced on February 21, 2022. In accordance with the Rules, paragraph 5, the due date for Response was March 13, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 14, 2022.
The Center appointed Douglas Clark as the sole panelist in this matter on March 21, 2022. 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.
The Complainant is a cloud computing provider. JG US, Inc., a company acquired by the Complainant, is the registered proprietor in the United States of the trademark JUSTGIVING, e.g., United States trademark registration No. 5792260, registered on July 2, 2019. JustGiving is the Complainant’s fundraising platform that is utilized globally to award donations to charities in over 160 countries.
The Respondent is an individual based in China.
The disputed domain name <justgviing.com> was registered on January 14, 2022. At the date of the Complaint and this decision, the disputed domain name resolves to a webpage that appears to be a parking page which includes links to other webpages promoting online fundraising.
The Complainant contends as follows:
The disputed domain name is identical or confusingly similar to the Complainant’s JUSTGIVING trademark. The dominant portion of the disputed domain name is confusingly similar to its trademark JUSTGIVING and registered domain name <justgiving.com>. The disputed domain name swaps the positions of the Complainant’s domain name’s sixth (“i”) and seventh (“v”) characters, but is otherwise identical;
The Respondent has no rights or legitimate interests in the disputed domain name. Due to the anonymity of the WhoIs record, it is impossible to tell whether or not the Respondent is associated with an entity that has any kind of right or legitimate interest in the disputed domain name. The Respondent is not affiliated with the Complainant in any way and the Complainant has never granted the Respondent any authorization or license to use the Complainant’s mark. The disputed domain name’s webpage is parked on a landing page with links relating to fundraising that the Complainant suspects may have been intentionally designed to create a false appearance and misrepresent the site as being legitimate. The Respondent has not made a bona fide offering of goods or services; and
The disputed domain name was registered and is being used in bad faith. The Respondent has placed links on the disputed domain name’s homepage that refer to fundraising. These links could potentially lead to fundraising campaigns not owned by JG US, Inc. that disrupt the business of the Complainant through financial or reputational means. The nature of the links on the disputed domain name’s homepage makes it clear that the Respondent is fully aware of the JUSTGIVING brand, as well as the nature of business that they are in. The spelling of the word in the disputed domain name (“justgviing”) is confusingly similar to the Complainant’s trademark and domain name which could be exploited to mount an effective phishing campaign that leverages the disputed domain name’s confusingly similar nature.
The Respondent did not reply to the Complainant’s contentions.
The language of the Registration Agreement is Chinese.
The Complainant requests that the language of the proceeding be English on the grounds that: (i) the Complainant resides in the United States and does not understand Chinese; and (ii) the Registrar offers an English version of its website; the Registrar’s support for English speaking customers indicates that the Respondent is not necessarily fluent in Chinese and is possibly fluent in English; and (iii) the trademark that is infringed upon operates in the United States.
The Respondent did not respond to this request.
Paragraph 11(a) of the Rules provides that: “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.”
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either Chinese or English;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel.
The Respondent did not respond to the Center’s preliminary determination. Further, the Respondent did not comment on the language of the proceeding nor did the Respondent file any response.
This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceedings “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint.”
As set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delays and expenses. These factors lead the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
The Panel finds that the Complainant has rights in the trademark JUSTGIVING through its acquisition of the company, JG US, Inc., that holds the trademark. The Panel notes that the Complainant does not have a registered trademark incorporating “justgiving” in China, where the Respondent is located. However, the jurisdiction(s) where the trademark is valid is not considered relevant to panel assessment under the first element (see section 1.1.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
The Panel finds that the disputed domain name <justgviing.com> is confusingly similar to the Complainant’s JUSTGIVING trademark. The disputed domain name swaps the positions of the Complainant’s trademark’s sixth (“i”) and seventh (“v”) characters, but is otherwise identical.
The Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy.
The Respondent has not asserted any rights or legitimate interests in relation to the disputed domain name.
Section 2.1 of the WIPO Overview 3.0 provides:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Complainant has asserted that the Respondent has no business with and is in no way affiliated with the Complainant. The Respondent is not authorized nor licensed to use the Complainant’s JUSTGIVING trademark or to apply for registration of the disputed domain name. There is no evidence that the Respondent has used or is planning to use the disputed domain name for a bona fide offering of goods or services. In addition, the Respondent has not responded to any of the Complainant’s contentions. The Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests, which has not been rebutted by the Respondent.
Accordingly, and considering the Panel’s findings below, the Respondent has no rights or legitimate interests in regard to the disputed domain name.
The Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy.
The nature of the links on the disputed domain name’s parking page at the date of the Complaint makes it clear that the Respondent is aware of the prior registered JUSTGIVING trademark, as well as the nature of business that they are in. The Panel is satisfied that the Respondent was aware of the JUSTGIVING trademark when he registered the disputed domain name.
The Respondent has registered the disputed domain name to attract Internet users to the website for commercial gain in accordance with paragraph 4(b)(iv) of the Policy. By reproducing almost identically the Complainant’s trademark in the disputed domain name and using it for a website displaying other fundraising pages, the Respondent is clearly seeking to attract users for commercial gain.
For the above reasons, the Panel finds that the disputed domain name was registered and is being used in bad faith.
The Complainant has therefore satisfied the third element under paragraph 4(a) of the Policy.
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 <justgviing.com> be transferred to the Complainant.
Douglas Clark
Sole Panelist
Date: April 10, 2022