WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
PHH Corporation v. Wu Shangxiao
Case No. D2015-0825
1. The Parties
The Complainant is PHH Corporation of Mt. Laurel, New Jersey, United States of America ("United States"), internally represented.
The Respondent is Wu Shangxiao of Lianjiang, Guangdong, China.
2. The Domain Name and Registrar
The disputed domain name <phhh.com> (the "Disputed Domain Name") is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 12, 2015. On May 12, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 12, 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.
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 May 15, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 4, 2015. On May 20, 2015, the Center received two email communications from the Respondent. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent's default on June 5, 2015.
The Center appointed John Swinson as the sole panelist in this matter on June 17, 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.
On July 5, 2015, the Center received an email communication from the Respondent offering to sell the Disputed Domain Name.
4. Factual Background
The Complainant is PHH Corporation, a financial services company which operates in the United States. It was founded in 1946, and is listed on the New York Stock Exchange. It provides mortgage services to some of the world's largest financial services firms.
The Complainant has provided evidence of a registered service mark for PHH in the United States (filed on June 29, 2005 and registered on May 1, 2007) (the "Trade Mark"). The Complainant also holds a registered domain name which incorporates the Trade Mark, being <phh.com>.
The Respondent is Wu Shangxiao, an individual, of China. The Respondent did not file a formal Response, and consequently little information is known about the Respondent.
The Disputed Domain Name was registered on January 23, 2002. Based on an informal email communication from the Respondent, it appears the Respondent purchased the Disputed Domain Name through a domain name auction for USD 438 on April 3, 2014.
The website at the Disputed Domain Name resolves to a page containing pay-per-click ("PPC") links, most of which relate to English language courses. The website also contains a notice advertising the Disputed Domain Name for sale.
5. Parties' Contentions
The Complainant's contentions are as follows.
Identical or Confusingly Similar
The Complainant is the registered owner of the Trade Mark in the United States. The Respondent has engaged in typosquatting by registering a domain name that is confusingly similar to the Trade Mark by using a common typographical error made by Internet users when inputting the Complainant's website address (<phh.com>) into a browser.
The Respondent's use of this confusingly similar domain name is misleading members of the public into believing the website at the Disputed Domain Name is endorsed by or affiliated with the Complainant.
Rights or Legitimate Interests
The Respondent is not known by any name or trade name that incorporates the Trade Mark. The Respondent uses the Disputed Domain Name to host sponsored links that resolve to a website offering education-related products for sale. The Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services or another legitimate, noncommercial, or fair use.
The Respondent intended to register the Disputed Domain Name for commercial gain, and to misleadingly divert consumers and otherwise trade on and profit from the Complainant's reputation and goodwill.
Registered and Used in Bad Faith
The Respondent used and registered the Disputed Domain Name in bad faith. The Respondent intentionally registered the Disputed Domain Name because the Respondent knew Internet users would become confused as to the Complainant's sponsorship, endorsement, or affiliation with the Respondent's website at the Disputed Domain Name, and the Respondent could attempt to commercially benefit. The Respondent had constructive knowledge of the Complainant's rights in the Trade Mark.
The Respondent did not file a formal Response in relation to the Complainant's contentions.
The Respondent sent an informal email communication to the Center on May 20, 2015, advising that it bought the Disputed Domain Name from a domain name auction administered by the Registrar. The Respondent provided a copy of the receipt from the auction, dated April 3, 2014.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(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.
The onus of proving these elements remains on the Complainant even though the Respondent has not filed a formal Response.
A. Procedural Issues
A respondent's failure to file a response does not automatically result in a decision in favour of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org, WIPO Case No. D2013-2059). In this case, the Panel may draw appropriate inferences from the Respondent's failure to specifically address the Complainant's contentions.
B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.
The Disputed Domain Name is confusingly similar to the Trade Mark. The only difference is the inclusion of an extra letter "h" in the Disputed Domain Name. The Panel finds that this insignificant change fails to distinguish the Disputed Domain Name from the Trade Mark (see, e.g. Mattel, Inc. v. Magic 8 ball factory, WIPO Case No. D2013-0058).
In light of the above, the Complainant succeeds on the first element of the Policy.
C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case for the following reasons:
- The Respondent has no connection with the Complainant, and the Complainant has not consented to the Respondent's use of the Trade Mark.
- Before any notice of the dispute, the Respondent was not using the Disputed Domain Name in connection with a bona fide offering of goods or services. The website to which the Disputed Domain Name resolves is commercial in nature. It is a PPC link website which presumably generates "click-through" advertising revenues. The Disputed Domain Name is not being used to describe the sponsored links, and is not related to the content of the website.
- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name or has used a term similar to the Disputed Domain Name in relation to any business.
Use of the Disputed Domain Name to host PPC links is not illegitimate per se. However, the Respondent has not submitted a formal Response, and therefore has provided no evidence of its rights or legitimate interests in respect of the Disputed Domain Name. In the absence of an explanation from the Respondent as to why the Respondent selected and registered this particular domain name, the prima facie case established by the Complainant has not been rebutted.
In light of the above, the Complainant succeeds on the second element of the Policy.
D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
The Complainant has been operating in the United States since 1946. It filed the Trade Mark in the United States in 2005. The information provided by the Registrar shows that the Disputed Domain Name was registered in 2002.
However, in its email to the Center dated May 20, 2015, the Respondent included a copy of a receipt for the purchase of the Disputed Domain Name via a domain name auction administered by the Registrar. This receipt was dated April 3, 2014.
The transfer of a domain name can amount to a new registration (see paragraph 3.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0")). Based on this information provided by the Respondent, the Panel considers the relevant date for registration as being April 3, 2014. This was almost 7 years following the Complainant's registration of the Trade Mark.
The Respondent purchased the Disputed Domain Name at an auction and has not used it other than to display PPC links. While these links do not advertise services that compete with the Complainant's services, the Respondent is presumably deriving a financial benefit from PPC revenue from that website.
The website at the Disputed Domain Name also contains a link offering the Disputed Domain Name for sale. As the Respondent has provided no other reason to explain the purchase, it is open to the Panel to infer that the Respondent purchased the Disputed Domain Name primarily for the purpose of selling it for more than their out-of-pocket costs (see paragraph 4(b)(i) of the Policy).
The Panel considers that the most likely source of traffic that the Disputed Domain Name would generate is from Internet users who mistakenly type the Disputed Domain Name into their Internet browser instead of the Complainant's domain name. As such, the Panel also infers that the Respondent has attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion as to the source, affiliation or endorsement of the website. This amounts to evidence of bad faith use under paragraph 4(b)(iv) of the Policy.
The Disputed Domain Name is not descriptive of the services advertised via the PPC links. There is no other obvious reason for the Respondent to register this particular domain name other than for the purpose of attempting to trade off the Complainant's goodwill in the Trade Mark.
These inferences are open to the Panel on the evidence provided. The Respondent had an opportunity to rebut the Complainant's contentions, but did not do so. It has not provided any evidence as to its reasons for registering and using the Disputed Domain Name. Therefore, the Panel finds the Respondent has registered and is using the Disputed Domain Name in bad faith.
The third element of the Policy is satisfied.
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 <phhh.com> be transferred to the Complainant.
Date: July 5, 2015