WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Managed By Q Inc v. XL Liu
Case No. D2016-1857
1. The Parties
The Complainant is Managed By Q Inc of New York, United States of America (“United States”), represented by Akerman LLP, United States.
The Respondent is XL Liu of Hangzhou, China.
2. The Domain Name and Registrar
The disputed domain name <managebyq.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 September 13, 2016. On September 14, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 15, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 21, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 12, 2016.
The Center appointed John Swinson as the sole panelist in this matter on October 19, 2016. 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, Managed By Q Inc of the United States, has been operating since April 2014. The Complainant provides on-demand office cleaning and management services to clients in New York, Chicago, San Francisco and Los Angeles.
The Complainant claims unregistered trade mark rights in its name, MANAGED BY Q (the “Trade Mark”) since April 2014.
The Complainant owns a domain name which incorporates the Trade Mark, being <managedbyq.com>, at which it operates the primary website associated with its office cleaning and management business. It registered this domain name on October 11, 2013.
The Respondent is XL Liu, an individual of China. The Respondent did not file a Response, and consequently little information is known about the Respondent.
The Disputed Domain Name was registered on June 19, 2015.
The website at the Disputed Domain Name features pay per click (“PPC”) links, a number of which advertise housekeeping jobs and plumbing and other operational services. The remaining PPC links advertise various training and educational courses.
5. Parties’ Contentions
The Complainant makes the following contentions.
Unregistered Trade Mark Rights
The Complainant provides its services under the Trade Mark MANAGED BY Q. This is an inherently distinctive, unregistered Trade Mark. The Complainant has developed a strong reputation since it launched in April 2014 in New York. To date, it has raised USD 25 million in startup funds, and is supplying services to millions of square feet of commercial real estate in New York, Chicago, San Francisco and Los Angeles. It has over 500 employees, and over 950 clients.
The Complainant has received a large amount of media attention, and extensively promotes the Trade Mark in print, email, online and on social media, and on promotional merchandise. The Complainant has spent over USD 1 million in advertising in the last two years.
The Complainant has received significant recognition among consumers. It has received over 700,000 hits to its website since it went live.
Identical or Confusingly Similar
The Disputed Domain Name is a misspelling of the Trade Mark. The letter “d” in “managed” is omitted. The Disputed Domain Name is a case of “typosquatting”, and is confusingly similar to the Trade Mark.
This misspelling does not significantly alter the appearance or pronunciation of the Disputed Domain Name as compared to the Trade Mark. Consumers are likely to believe that the Disputed Domain Name relates to the Complainant.
Rights or Legitimate Interests
The Respondent registered the Disputed Domain Name on June 19, 2015, over a year after the Complainant first began using the Trade Mark.
The website at the Disputed Domain Name is a parking page generating PPC advertising revenue. It capitalizes on the value of the Trade Mark and diverts Internet traffic away from the Complainant. The Respondent financially benefits from this advertising. Previous UDRP decision establish that the use of a domain name to generate PPC advertising revenue does not give rise to rights or legitimate interests in that domain name.
There is no evidence that the Respondent is commonly known by the Disputed Domain Name or is making a legitimate noncommercial or fair use of the Disputed Domain Name. The Respondent is XL Liu. Based on the WhoIs record, the Respondent is not associated with a trade name or designation “Managebyq.com” or “Manage By Q”. The Respondent’s lack of a bona fide offering of goods or services establishes that the Respondent is not commonly known by the Disputed Domain Name.
The Respondent’s website does not provide a comment or parody of the Complainant, such that it could be argued that there is a legitimate noncommercial of fair use of the Trade Mark.
Registration and Use in Bad Faith
The Respondent is using the Disputed Domain Name in bad faith. The Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship or affiliation with the Respondent’s website. Use of a confusingly similar domain name to attract Internet traffic with the aim of receiving advertising revenue constitutes bad faith within the meaning of the Policy.
The Respondent has been the subject of two previous adverse decisions under the Policy, in which the Respondent registered misspellings of well known trade marks. This is further evidence of the Respondent’s bad faith.
The Respondent did not reply to the Complainant’s contentions.
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 Response.
A. Procedural Issues
The Respondent’s failure to file a response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org, WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default.
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 Complainant claims unregistered or common law rights in the Trade Mark. In order to successfully assert common law or unregistered trade mark rights for the purposes of the UDRP, the Complainant must show that the Trade Mark has become a distinctive identifier associated with the Complainant or its goods or services (i.e., that the Trade Mark has acquired a “secondary meaning”).
The Complainant has provided extensive evidence of media recognition it has received over the last two years. It has also spent a significant amount of money on its advertising and promotional materials, and has gained a significant client base in that time. The Panel considers that the Complainant has acquired common law rights in the Trade Mark for the purposes of the Policy.
As the Complainant submitted, the Disputed Domain Name is a misspelling of the Trade Mark. It differs from the Trade Mark only by the omission of the letter “d” in “managed”.
It is well established that “typosquatting” can constitute confusing similarity (Deutsche Bank Aktiengesellschaft v. New York TV Tickets Inc., WIPO Case No. D2001-1314, DaimlerChrysler Corporation v. Worshipping, Chrisler, and Chr, aka Dream Media and aka Peter Conover, WIPO Case No. D2000-1272 and Playboy Enterprises v. Movie Name Company, WIPO Case No. D2001-1201). The Panel considers this is likely to be a case of typosquatting.
As such, the Panel finds that the Disputed Domain Name is confusingly similar to the Trade Mark. 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. This finding is based on the following:
- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The website at the Disputed Domain Name features a PPC link page. A number of these links relate to housekeeping and operational services, which are similar to the services provided by the Complainant. This is not a bona fide use of the Disputed Domain Name under the Policy.
- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or common law trade mark rights in relation to this name.
- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. As submitted by the Complainant, it is likely that the Respondent is profiting from the PPC advertising on the website at the Disputed Domain Name. In the absence of any evidence from the Respondent to the contrary, the Panel is of the view that this does not amount to a bona fide use for the purposes of the Policy.
- As previous panels have found, typosquatting does not constitute a legitimate use of the Trade Mark (see, e.g., Edmunds.com, Inc. v. Yingkun Guo, dba This domain is 4 sale, WIPO Case No. D2006-0694; Barnes & Noble College Bookstores, Inc. v. Oleg Techino, WIPO Case No. D2006-1537).
The Respondent had the opportunity to demonstrate his rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and 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.
While the Complainant has only been operating since 2014 (i.e., for just over two years), it has made significant efforts to develop and promote the Trade Mark during that time, and has gained a strong client base spanning four cities in the United States. The Complainant has been featured in numerous media articles and enjoys a solid presence in social media. In the circumstances, the Panel considers it likely that the Respondent registered the Disputed Domain Name with the Complainant in mind, to trade off the Complainant’s reputation and Trade Mark. As such, the Panel finds that the Disputed Domain Name was registered in bad faith.
Further, previous panels have found that if a respondent has engaged in typosquatting, that is sufficient to establish registration and use in bad faith (Barnes & Noble College Bookstores, Inc. v. Oleg Techino, WIPO Case No. D2006-1537; Edmunds.com, Inc. v. Yingkun Guo, dba This domain is 4 sale, WIPO Case No. D2006-0694; Sephora v. WhoisGuard, WIPO Case No. D2006-0845). The Panel agrees with this view. As previously mentioned, this is a case of typosquatting, where the Disputed Domain Name is identical to the Trade Mark save for the omission of one letter. The Respondent has registered a common misspelling of the Trade Mark to divert traffic from the Complainant’s website to the Respondent’s website. The Panel finds that this constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy.
Finally, the Complainant has directed the Panel to two previous panel decisions which have made adverse findings against the Respondent. In light of paragraph 4(b)(ii) of the Policy, in the circumstances, these previous decisions support the Panel’s finding of bad faith.
Given the above, and in the absence of a Response and any evidence rebutting bad faith registration and use, the Panel finds that the Complainant has succeeded on the third element 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, <managebyq.com>, be transferred to the Complainant.
Date: November 2, 2016