WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lingjia Cai, Yongfang Xiang v. Maolin Zhang
Case No. D2017-0289
1. The Parties
The Complainant is Lingjia Cai of Guangdong, China; and Yongfang Xiang of Guangyuan, Sichuan, China, represented by Ni, Wang & Massand, PLLC, United States of America.
The Respondent is Maolin Zhang of Chongqing, China.
2. The Domain Names and Registrar
The disputed domain names <bx111222.com>, <bx222333.com>, <bx333444.com>, <bx444555.com>, <bx555666.com>, <bx666777.com>, <bx777888.com>, <bx888999.com>, <cheng11.com>, <cheng111.com>, <cheng222.com>, <cheng33.com>, <cheng333.com>, <cheng444.com>, <cheng55.com>, <cheng555.com>, <cheng666.com>, <cheng77.com>, <cheng777.com>, <cheng88.com>, <cheng99.com>, <fa888.com>, <hggjw.com>, <hggjw.net>, <hg1669.com>, <hg1895.com>, <hg1896.com>, <hg1898.com>, <hg1898.net>, <hhhggg.com>, <hhhggg.net>, <hhhggg.org>, <h1898.com>, <long00000.com>, <long11111.com>, <long22222.com>, <long33333.com>, <long44444.com>, <long55555.com>, <long66666.com>, <long77777.com>, <long88888.com>, <long99999.com>, <my1898.com>, <new2.com>, <ok888999.com>, <sjb1122.com>, <sjb1133.com>, <sjb1144.com>, <sjb1155.com>, <sjb6699.com>, <xin2.com>, <xin2.net>, <yhgj.com>, <yh111222.com>, <yh1122.com>, <yh1133.com>, <yh1144.com>, <yh1155.com>, <yh1555.com>, <yh1666.com>, <yh6789.com>, <111xin2.com>, <222xin2.com>, <333xin2.com>, <444xin2.com>, <555xin2.com>, <666xin2.com>, <7-q.com>, <7422.com>, <777xin2.com>, <797979.com>, <888xin2.com> and <999xin2.com> are registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2017. On February 14, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On February 15, 2017, 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 February 21, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 13, 2017. The Respondent did not submit any substantial response except for an email on February 17, 2017 indicating that it does not infringe the Complainant’s right. Accordingly, the Center notified the Parties the commencement of panel appointment process on March 14, 2017.
The Center appointed Linda Chang as the sole panelist in this matter on March 23, 2017. 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 Complainants have no relevant registered trademarks and claim that the disputed domain names are identical to unregistered trademarks in which the Complainants have rights.
The disputed domain names were registered at various time between March 9, 2003 and June 6, 2014. The disputed domain names resolve to either inactive websites or online gambling websites.
5. Parties’ Contentions
The Complainants contend that disputed domain names were used by the Complainants as unregistered trademarks for e-commerce services, and that the disputed domain names are identical to unregistered trademarks in which the Complainants have rights.
The Complainants further contend that the Respondent has no rights or legitimate interests in the disputed domain names.
The Complainants finally contend that the Respondent registered the disputed domain names in bad faith as the Respondent hacked into the Complainants’ GoDaddy accounts and changed the registrant information for the disputed domain names to the Respondent’s personal information without the knowledge or consent of the Complainants. Moreover, the Respondent has attempted to sell the disputed domain names to interested buyers that may have included competitors of the Complainants. The Respondent registered the disputed domain names to trade on the good will of the Complainants.
Aside from the email dated February 18, 2017, the Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Under paragraph 4(a)(i) of the Policy, the Complainant must establish that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
The Complainants contend that they used the 74 disputed domain names for e-commerce services, therefore, the Complainants claim to have unregistered trademark rights in each of the disputed domain names as a result of this use.
In order to show unregistered trademark rights for purposes of the Policy, the Complainants must present evidence that each of the disputed domain names have acquired secondary meaning—i.e., that they have become distinctive identifiers associated with the Complainants or their goods or services (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, paragraph 1.7).
Such evidence of unregistered rights may include length and amount of sales under the claimed trademarks, the nature and extent of advertising, consumer surveys, and media recognition. A conclusory allegation of common law rights is normally insufficient, even if undisputed. .
The Panel has reviewed all of the annexes submitted by the Complainant, and has been unable to find any evidence that the key parts of the disputed domain names have been used/advertised as trademarks, i.e., to identify the Complainant as the source of goods or services under a particular mark. The Complainant only submits a conclusory allegation of common law rights without proving it has acquired trademark rights in these names to support its contention.
The Complainant provides no evidence beyond an assertion that very modest economic resources were spent on marketing the disputed domain names and they produce modest annual revenue. Furthermore, the mere assertion that the Complainants have spent economic resources in order to market the disputed domain names is insufficient by itself to establish rights in a mark for the purposes of the Policy (see Alpine Entertainment Group, Inc. v. Walter Alvarez, WIPO Case No. D2006-1392).
In the absence of evidence to support the Complainants’ trademark claims in any of the 74 disputed domain names, the Panel holds that the Complainants have failed to prove that the disputed domain names are identical or confusingly similar to trademarks or service marks in which the Complainants have rights.
B. Rights or Legitimate Interests
The Panel declines to analyze the claim under the Policy 4(a)(ii) as the Complainants have failed to satisfy Policy 4(a)(i).
C. Registered and Used in Bad Faith
The Panel declines to analyze this element.
The Panel first notes that the allegations of theft are outside the limited scope of the Policy and that the present decision does not leave the Complainant without potential redress in the courts.
The Complainants have failed to prove that the disputed domain names are identical or confusingly similar to a mark in which it has prior rights. The requested remedy is denied.
Date: April 6, 2017