WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cards Against Humanity, LLC v. yang qi / Domain Administrator, PrivacyGuardian.org
Case No. D2015-0456
1. The Parties
The Complainant is Cards Against Humanity, LLC of Harrisburg, Pennsylvania, United States of America, represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, United States of America.
The Respondent is yang qi of Beijing, China, / Domain Administrator, PrivacyGuardian.org of Phoenix, Arizona, United States of America.
2. The Domain Name and Registrar
The disputed domain name <cardsagainsthumanityspot.com> is registered with NameSilo, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 13, 2015. On March 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 16, 2016, 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 March 19, 2015 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 amended Complaint on March 20, 2015.
The Center verified that the amended 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 March 25, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 14, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 17, 2015.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on May 4, 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 is the owner of the trademark CARDS AGAINST HUMANITY, which has been used since 2009. It is registered e.g. in the United States under numbers 4,304,905. The disputed domain name was registered on April 11, 2014. The website to which the disputed domain name resolved to a webpage offering competing products (annex D to the Complaint). The website to which the disputed domain name resolves is currently inactive.
5. Parties' Contentions
The disputed domain name is confusingly similar to the Complainant's trademark, because it includes the trademark in its entirety and adds only the generic word "spot".
The Complainant has not authorized the Respondent to use the disputed domain name nor is the Respondent making legitimate noncommercial use of it. The Respondent is not known by the disputed domain name.
The Respondent has registered the disputed domain name with knowledge of the Complainant's trademark and is using it to offer goods or services competing with those of the Complainant.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In order to obtain the transfer of a domain name, a complainant must prove the three Policy elements, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant establishes that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
The Complainant has shown that it has registered the trademark CARDS AGAINST HUMANITY in a number of jurisdictions, including the United States. The Complainant has therefore established that it has rights to the trademark CARDS AGAINST HUMANITY.
In terms of confusing similarity, the disputed domain name incorporates the Complainant's trademark in its entirety. The trademark is combined with the common term "spot" in the disputed domain name. This may lead Internet users to believe that the disputed domain name would relate to customer accounts maintained by the Complainant. The Panel finds that a domain name is generally confusingly similar to a mark where it merely adds a common word after a distinctive trademark.
The Panel therefore finds that the first element of the Policy is established.
B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires that the Complainant establishes that the Respondent has no rights or legitimate interests to the disputed domain name.
The consensus view among UDRP panels is that once a complainant has made a prima facie showing indicating the absence of the respondent's rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270 and paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
The Complainant has submitted that it is not affiliated with the Respondent, it has not authorized the Respondent to use the Complainant's trademark or the disputed domain name, that the Respondent is not commonly known by the disputed domain name, and that the Respondent is not making legitimate noncommercial use of the disputed domain name and that it is not used for a bona fide offering of goods or services. The Respondent has not rebutted these arguments.
The Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Therefore, the Panel finds that the second element of the Policy is fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant establishes that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b)(i) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
"(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business or competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to his 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 your website or location or of a product or service on his website or location."
The Complainant contends that the Respondent registered the disputed domain name fully aware of the Complainant's trademark. Given the length and nature of the Complainant's trademark, and the fact that competing products are being offered on the website to which the disputed domain name resolves, the Panel finds that it is unlikely that the Respondent would not have been aware of the Complainant's trademark when registering the disputed domain name.
Furthermore, the Complainant has submitted evidence that the disputed domain name resolved to a website in which products competing those with the Complainant are offered, and the website also includes pay-per-click links generating income for the Respondent (Annex D of the Complaint).
The Panel finds that the Respondent is directing Internet users to competing service offerings and a pay-per-click website, which means that the Respondent is using the Complainant's trademark to create confusion among Internet users to attract visitors to the Respondent's website for commercial gain as per paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that the third element of the Policy is 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, <cardsagainsthumanityspot.com> be transferred to the Complainant.
Date: May 18, 2015