WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tumblr, Inc. v. 段翔宇(Duan Xiang Yu)
Case No. D2013-0106
1. The Parties
The Complainant is Tumblr, Inc. of New York, New York, the United States of America (“USA”), represented internally.
The Respondent is 段翔宇 (Duan Xiang Yu) of Chenzhou, Hunan, China.
2. The Domain Name and Registrar
The disputed domain name <tumbr.com> is registered with eName Technology Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 16, 2013. On January 17, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 18, 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.
On January 18, 2013, the Center sent an email communication to the parties, in both Chinese and English, regarding the language of the proceeding. On the same day, the Complainant requested English be the language of the proceeding. The Respondent did not make any submissions with respect to the language of the proceeding by 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 24, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 13, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 14, 2013.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 21, 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.
On February 22 and 26, 2013, the Center received email communications from the Respondent in this case. The content of such emails is described under section 5.B below.
4. Factual Background
The Complainant is a company incorporated in the State of Delaware in the USA.
The Complainant is the owner of a registration in the USA for the trade mark TUMBLR (the “Trade Mark”).
The Respondent is an individual apparently with an address in China.
C. The Disputed Domain Name
The disputed domain name was registered on February 24, 2011.
5. Parties’ Contentions
The Complainant made the following submissions in the Complaint.
The Complainant owns and operates the TUMBLR microblogging and social sharing platform, launched in February 2007. The Complainant’s platform allows individuals to post content (such as text, photos, quotes, links, audio, and videos) to an Internet-accessible blog. The Complainant’s network of blogs ranks in the top 15 in terms of reach according to Quantcast.com. To date, the platform hosts over 89 million blogs with over 140 million unique visitors per month.
Since launching the initial version of the platform in 2007, the Complainant has used the Trade Mark in relation to its publishing of online media and its Internet based social networking services, as well as other products and services.
The disputed domain name is confusingly similar to the Trade Mark. It consists of the Trade Mark minus the single letter “l”. In registering the disputed domain name, the Respondent is attempting to capitalise on a predictable typo of the Trade Mark, and is hoping to acquire web traffic from people who accidentally misspell the Complainant’s domain name <tumblr.com>.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Respondent is not commonly known by the disputed domain name and is not making a bona fide commercial use of the disputed domain name.
The disputed domain name has been registered and is being used in bad faith. It has been used by the Respondent in respect of a website (the “Website”) which mimics the style and design of the Complainant’s “www.tumblr.com” website, in order to mislead people into believing that the website is owned by, or operated with the consent of, the Complainant. Furthermore, the Website is apparently a phishing site which attempts to deceive individuals into divulging their personal information by promising them free Apple MacBook Air, iPhone 4S and iPad products in return for filling out a “30 second survey”.
The Respondent did not reply to the Complainant’s contentions within the Center’s stipulated deadline of February 13, 2013.
On February 22, 2013, the Respondent sent an email communication to the Center requesting an extension of time for filing the Response. The grounds of the request were that, because the Respondent returned to its home town to celebrate the Chinese New Year, the Respondent didn’t see the (Notification of Complaint and Commencement of Administrative Proceeding) email sent by the Center.
On February 26, 2013 the Respondent sent a further email objecting to the filing of the Complaint in English only.
6. Discussion and Findings
6.1 Preliminary Procedural Issues
A. Extension of Time for Filing of the Response
The general powers of the Panel under paragraph 10 of the Rules include:
(1) The power under paragraph 10(a) to conduct the proceeding in such manner as it considers appropriate in accordance with the Policy and the Rules; and
(2) In exceptional cases, and subject to the caveat that the Panel must ensure the proceeding takes place with due expedition, the power under paragraph 10(c) to extend a period of time fixed according to the Rules (whether at the request of a Party or on its own motion).
The wide discretion accorded to the Panel under paragraph 10(a) is however somewhat tempered by paragraph 10(b) of the Rules, which provides that, in all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case.
Having taken into account all the circumstances of this case, the Panel is not satisfied that there are exceptional circumstances justifying an extension of time for the Respondent to file a Response, for the following reasons:
(1) The Complaint was filed on January 16, 2013 and the Respondent was formally notified of the proceeding on January 24, 2013;
(2) The deadline for the Response was February 13, 2013;
(3) The Panel was appointed on February 21, 2013;
(4) It was not until after the Panel was appointed that the Respondent asked for an extension of time for filing the Response, by email dated February 22, 2013;
(5) The Chinese New Year Holiday week in China commenced on Saturday February 9, 2013;
(6) The Panel finds the reasons for the request unconvincing. Modern communication devices and Internet coverage allow for instant access to email in most places worldwide (including in China, where the Respondent is based);
(7) There was a period of more than two weeks between the date of notification of the proceeding and the commencement of the Chinese New Year Holiday, during which time the Respondent should have been able to access the notification of proceeding email sent by the Center to the Respondent and take steps to file a Response or request an extension before the expiration of the deadline.
The Panel therefore refuses to grant an extension of time for filing of the Response.
B. Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. No agreement has been entered into between the Complainant and the Respondent to the effect that the language of the proceeding should be English.
Paragraph 11(a) allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) Electrical Appliance Co. Ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593).
The Complainant has requested that English be the language of the proceeding for the following reasons:
(1) The Website is an English language website and this provides strong evidence that the Respondent is familiar with the English language;
(2) The Complainant is a US based company and it would create an undue burden if the Complainant were required to translate its submissions into Chinese; and
(3) The disputed domain name is a Latin script domain name (being a misspelling of the Complainant’s <tumblr.com> domain name).
The Respondent did not file a Response and did not file any submissions with respect to the language of the proceeding by the specified due date.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng, WIPO Case No. D2006-0432).
The Panel finds that sufficient evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is at least conversant and proficient in the English language (Finter Bank Zurich v. Shumin Peng, supra). The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate the date of registration of the disputed domain name by several years.
In the Panel’s view, this is a clear cut case of typosquatting.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark and holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to the Respondent 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 (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the Respondent 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.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by several years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption (see Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; and Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the evidence suggests the Website, which mimics the look and feel of the Complainant’s “www.tumblr.com” website, is being used to entice Internet users to provide their personal information by taking part in an online survey with the promise of receiving Apple products as prizes.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use in bad faith on the part of the Respondent:
By using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website 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 website or location or of a product or service on the Respondent’s website or location.
As indicated before, the Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by several years.
The evidence shows the Respondent has registered and used the disputed domain name and set up the Website in order to entice Internet users who have misspelled the Complainant’s <tumblr.com> domain name to divulge personal information by participating in an online survey, with the promise of receiving free goods. Such use of the disputed domain name amounts to clear evidence of bad faith.
The Panel therefore finds, in all the circumstances, the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.
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 <tumbr.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: March 7, 2013