WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Daybreak Game Company LLC v. Lv Guo Ping
Case No. D2018-1935
1. The Parties
The Complainant is Daybreak Game Company LLC of San Diego, California, United States of America (“Unites States”), internally represented.
The Respondent is Lv Guo Ping of Baoding, China.
2. The Domain Name and Registrar
The disputed domain name <myh1z1.com> is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed against “Qizhen Lian” with the WIPO Arbitration and Mediation Center (the “Center”) on August 24, 2018. On August 27, 2018, the Center transmitted by email to the Registrar EnomEU Inc. a request for registrar verification in connection with the disputed domain name. On September 7, 2018, the Registrar EnomEU Inc. transmitted by email to the Center its verification response confirming that the Qizhen Lian is listed as the registrant and providing the contact details, however, it also indicated that the disputed domain name expired on June 21, 2018. On September 18, 2018, the Registrar EnomEU Inc. confirmed to the Center that the disputed domain name was deleted and no longer registered with it. On September 19, 2018, the Center transmitted by email to the new Registrar NameSilo, LLC a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar NameSilo, LLC transmitted by email to the Center its verification response disclosing that Lv Guo Ping is the registrant of the disputed domain name and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 12, 2018.
The Center verified that the Complaint together with the amendment to 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 October 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 7, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 8, 2018.
The Center appointed Douglas Clark as the sole panelist in this matter on November 20, 2018. 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 video game developer based in San Diego, United States.
The Complainant is the owner of various “H1Z1” trademarks in various jurisdictions, including United States trademark registrations Nos. 5008238, 4804783, registered in 2015 and 2016; Europe trademark registration No. 14487342, registered in 2015; Taiwan province of China trademark registration No. 01802510, registered in 2016; Singapore trademark registration No. 40201607334X, registered in 2016; International trademark registration No. 1296647, registered in 2016; Hong Kong, China trademark registration No. 303702951, registered in 2016; and Canada trademark registration No. TMA979175, registered in 2017.
The Respondent is an individual based in Baoding, China.
The disputed domain name was registered on September 11, 2018 and resolves to a page with various Chinese gambling advertisements promote online gambling in Macau as well as pornographic images.
5. Parties’ Contentions
The Complainant contends as follows:
Identical or Confusingly Similar
The Complainant contends that the disputed domain name <myh1z1.com> and the trademark “H1Z1” are confusingly similar. The disputed domain name contains “H1Z1” in its entirety as the distinctive part of the disputed domain name. The additional English pronoun “my” included does not affect the confusing similarity of the domain name from the registered trademark.
No rights or legitimate Interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for “H1Z1”. It, therefore, has no rights or legitimate interests in the disputed domain name.
Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant’s rights in the H1Z1 trademark given its worldwide reputation and the popularity of its games which includes H1Z1, the Respondent acquired the disputed domain name to disrupt the business of the Complainant and/or to prevent the Complainant from reflecting its mark in a corresponding domain name.
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 listed in paragraph 4(a) of the policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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 use in bad faith.
A. Identical or Confusingly Similar
The disputed domain name <myh1z1.com> is confusingly similar to the Complainant’s trademark. The disputed domain name incorporates the Complainant’s H1Z1 mark in full with the addition of a pronoun “my”. The disputed domain name is therefore confusingly similar to the Complainant’s registered trademark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8.
The first element of paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
“While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP.”
The Respondent has no business or any kind of relationships (i.e., licensee, distributor) with the Complainant and is using the domain name to promote gambling and exhibit pornographic images. These are clearly not in the interests of the Complainant.
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
Considering the absence of a response by the Respondent, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
Based on the evidence, the Panel has no hesitation in finding that the disputed domain name <myh1z1.com> was registered in bad faith and is being used in bad faith. The current advertisements for online gambling and pornography on the site disputed domain name resolves to establish the Respondent is making a commercial gain from the site by attracting users to generate click through revenue.
Further, the pornographic materials on the website, tarnish the H1Z1 trademark. This has been found in previous UDRP cases to constitute evidence of registration and use of a domain name in bad faith. (See WIPO Overview 3.0, section 3.12)
The third part of the paragraph 4(a) of the Policy is therefore 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 <myh1z1.com> be transferred to the Complainant.
Date: December 6, 2018