WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dropbox, Inc. v. xu ruo qing / Xiamen Privacy Protection Service Co. Ltd.
Case No. D2017-0983
1. The Parties
The Complainant is Dropbox, Inc. of San Francisco, California, United States of America (“United States”), internally-represented.
The Respondent is xu ruo qing of Shenzhen, Guangdong, China / Xiamen Privacy Protection Service Co. Ltd. of Xiamen, Fujian, China.
2. The Domain Name and Registrar
The disputed domain name <dropbo.com> is registered with eName Technology Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on May 17, 2017. On May 18, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 22, 2017, 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 May 29, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on June 2, 2017.
On May 29, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On May 31, 2017, the Complainant requested for English to be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent in Chinese and English of the Complaint, and the proceeding commenced on June 7, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 27, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 28, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on July 3, 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 Complainant is a company incorporated in the United States and the owner of numerous registrations in over 70 jurisdictions around the world for the trade mark DROPBOX (the “Trade Mark”), including United States registration number 4,478,345 with a filing date of September 1, 2009 and a registration date of February 4, 2014; European Union registration number 008231219 with a filing date of April 21, 2009 and a registration date of June 8, 2011; and Chinese registration number 9834745 with a filing date of November 8, 2011 and a registration date of October 14, 2012.
The Complainant has since 2007 used the Trade Mark continuously in the United States, China and elsewhere in relation to the promotion and sale of computer software used to store and share data, documents, files and other content.
The Respondent is apparently an individual located in China.
C. The Disputed Domain Name
The disputed domain name was registered on August 25, 2009.
D. The Website at the Disputed Domain Name
As of the date of the Complaint, the disputed domain name was resolved to a website displaying keyword-based targeted advertisements in the form of links. The Respondent has alternated between making no use of the disputed domain name, redirecting it to unrelated websites, misleading users by malvertising, and parking the disputed domain name at websites providing sponsored links (the “Websites”).
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is 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 Agreement for the disputed domain name 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 Agreement. However, 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.
Amongst other submissions, the Complaint submits that the content of the Websites is exclusively in English.
The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not file a response.
In exercising its discretion to use a language other than that of the Registration Agreement, 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 English. 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. The Complainant relies upon unregistered or common law rights in respect of its use of the Trade Mark since 2007, a date prior to the registration by the Respondent of the disputed domain name. Furthermore, the dates of the Complainant’s registrations for the Trade Mark are not relevant for the purposes of the first limb under paragraph 4(a) of the Policy. See section 1.2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The disputed domain name is identical to the Trade Mark, save that the last letter, “x”, is missing.
The Panel therefore finds that the disputed domain name is 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 name 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 name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he or she has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has either been passively held, or has been used in respect of the Websites, which, on the undisputed evidence of the Complainant, have, without the Complainant’s authorisation, provided sponsored links by targeting the Trade Mark; or have otherwise engaged in malvertising.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and therefore finds that the requirements of paragraph 4(a)(ii) are met.
C. Registered and Used in Bad Faith
The Panel finds, in light of the Complainant’s evidence regarding its activities dating from 2007, that the Respondent registered the disputed domain name with the Complainant in mind with the intention to use it in the manner described above. In light of the evidence of the Respondent’s use of the Websites in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is 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 name <dropbo.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: July 17, 2017