WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Wikimedia Foundation, Inc. v. Lin Yanxiao
Case No. D2015-2032
1. The Parties
The Complainant is Wikimedia Foundation, Inc. of San Francisco, California, United States of America ("US"), represented internally.
The Respondent is Lin Yanxiao of Guangzhou, Guangdong, China.
2. The Domain Names and Registrar
The disputed domain names <wikipediya.com> and <wilipedia.com> are registered with Hangzhou AiMing Network Co., LTD (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 10, 2015. On November 10, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On November 11, 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 November 16, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On November 17, 2015, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 27, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 17, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 18, 2015.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 23, 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 a non-profit corporation incorporated and headquartered in the US and the owner of numerous registrations worldwide for the trade mark WIKIPEDIA (the "Trade Mark"), including International Trade Mark No. 839132, registered on December 16, 2004. The Complainant has used the Trade Mark continuously since 2001 in respect of its well-known free online encyclopaedia.
The Respondent is an individual apparently resident in China.
C. The Disputed Domain Names
The disputed domain names were registered on August 2, 2005 and July 15, 2005, respectively.
D. The Websites at the Disputed Domain Names
The disputed domain names have been at various times resolved to numerous different English language websites (the "Websites"), some of which with apparently innocuous third party content, and some of which are apparently fraudulent and designed to deceive users into calling a phone number or providing personal information as part of an elaborate phishing scheme.
5. Parties' Contentions
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names have been registered and are being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of the Proceeding
The language of the Registration Agreements for the disputed domain names 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 Agreements.
Paragraph 11(a) of the Rules 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 order 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.
The Complainant has requested that English be the language of the proceeding for several reasons, including the fact the content of the Websites is entirely in English.
The Respondent has not filed a Response and has not filed any submissions regarding the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreements, 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.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language. 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.
6.2 Substantive Elements of the Policy
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.
Each of the disputed domain names is almost identical to the Trade Mark and this is a clear case of typosquatting.
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark.
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 a respondent has rights or legitimate interests in a 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.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Mark. 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 names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Websites, many of which have, according to the undisputed evidence of the Complainant, apparently been set up as part of an elaborate phishing scheme.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names.
C. Registered and Used in Bad Faith
In light of the manner of use by the Respondent of the Websites described above, the Panel finds the requisite element of bad faith has been satisfied.
For all the foregoing reasons, the Panel has no hesitation in concluding that the disputed domain names have been registered and are being used in bad faith.
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 names <wikipediya.com> and <wilipedia.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: January 6, 2016