WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
xHamster IP Holdings Ltd v. Chong Wang
Case No. D2019-3129
1. The Parties
The Complainant is xHamster IP Holdings Ltd, Antigua and Barbuda, represented internally.
The Respondent is Chong Wang, China.
2. The Domain Name and Registrar
The disputed domain name <xhamster3.com> is registered with Your Domain Casa, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 18, 2019. On December 18, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 30, 2019, 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 January 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 30, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 3, 2020.
The Center appointed Joseph Simone as the sole panelist in this matter on February 11, 2020. 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, xHamster IP Holdings Ltd, operates an Internet website offering adult content, which became the third most popular website of its ilk in 2015.
The Complainant is the owner of the trademark XHAMSTER, registered in Benelux under Registration No. 0986331, on December 3, 2015, in Classes 9, 35, 38, 41, 42, and 45.
The Complainant first used the trademark incidental to registration of the domain name <xhamster.com> on April 2, 2007. The Complainant also operates websites at the domain names <xhamster2.com>, <xhamster7.com> and <xhamster8.com> that provide access to its service for users worldwide.
The disputed domain name <xhamster3.com> was registered on April 14, 2019, and resolves to a Chinese language website with links which redirect users to an online gaming business called Long8 at the website “www.long882.com”. The Chinese character pronounced “long” translates as “dragon”.
5. Parties’ Contentions
The Complainant submits the following arguments:
1. The disputed domain name is identical or confusingly similar to its trademark XHAMSTER, because it consists of the trademark in its entirety and the generic ending “3”. The addition of the number “3” is insufficient to distinguish the disputed domain name according to the Policy.
2. The Respondent has no rights or legitimate interests in respect of the disputed domain name, which it registered 12 years after the Complainant began to operate its website at “www.xhamster.com”. Prior to this, the Complainant’s XHAMSTER trademark had already become known worldwide. The Respondent’s goal was to mislead Internet users and the Complainant’s customers by creating confusion with the Complainant’s business and redirecting them to its own business of online games, slot machines and online sports at the website “www.long882.com”. There is no evidence that the Respondent has ever done business under the name “xhamster3” or become known by that name. The Respondent is not affiliated with the Complainant or authorized to use its trademark.
3. The disputed domain name was registered and is being used in bad faith. The Complainant contacted the Respondent by email on August 9, 2019, requesting transfer of the disputed domain name, but received no response. This indicates that the Respondent has no legitimate interest in the disputed domain name. The Respondent is in fact using the disputed domain name to attract Internet users to a gaming website for commercial gain by creating a likelihood of confusion with the Complainant as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. This constitutes unfair competition and cybersquatting.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Under the first element of the Policy, a complainant must prove that a disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights (paragraph 4(a)(i) of the Policy).
The Complainant has shown that it owns a trademark registration for XHAMSTER, therefore it possesses rights to the mark.
Excluding the Top-Level Domain “.com”, the disputed domain name “xhamster3” is composed of the Complainant’s trademark XHAMSTER and the number “3”. The addition of a generic letter or number such as “3” is insufficient to remove the confusingly similarity to the Complainant’s trademark. Therefore, the disputed domain name is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
Under the second element, a complainant must demonstrate that the respondent should be deemed as having no rights or legitimate interests in respect of the disputed domain name (paragraph 4(a)(ii) of the Policy).
The Complainant submits it has no affiliation with the Respondent and has never authorized the Respondent to use its trademark. Where the Complainant has established a significant and globally known business under the name “xHamster”, the Respondent should be able to show specific reasons for choosing that name as part of the disputed domain name.
The Respondent is using the disputed domain name as a funnel to direct Internet users to a gambling business called “Dragon 8” in English, which is operated at the website “www.long882.com”. There is no sign of use of the mark XHAMSTER3 or any similar marks to suggest that the Respondent might have developed a legitimate business under the name. Nor is there any evidence that the Respondent, Chong Wang, is commonly known by the disputed domain name.
Since the Respondent has failed to present any evidence that would justify using the Complainant’s trade name and trademark in the disputed domain name, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name and the second element is therefore satisfied.
C. Registered and Used in Bad Faith
Under the final element of the Policy, the Complainant must prove that a disputed domain name was registered and is being used in bad faith (paragraph 4(a)(iii) of the Policy).
The Complainant’s trade name is “xHamster”, under which it has developed a significant business. Founded in 2007, it now has more than 10 million members and is one of the top three websites offering adult content on the Internet. The Complainant’s main website is operated at <xhamster.com>, but it also operates three websites at domain names containing xhamster followed by a number: <xhamster2.com>, <xhamster7.com> and <xhamster8.com>. Given these circumstances, the Panel concludes that the Respondent was fully aware of the Complainant and its rights when it registered the disputed domain name also containing “xhamster” and a number.
The Respondent then proceeded to use the disputed domain name as a conduit to redirect users to a website for either his own gambling business or one from which he presumably generates revenue. The Respondent thereby exploits the reputation of the Complainant for commercial gain, by creating at least initial confusion as to the source or affiliation of the website with the Complainant. This also interferes with the Complainant’s business to the extent that Internet users are misled or the Complainant wishes to set up its own domain name containing its trademark and the number “3”.
Therefore, the Panel finds the disputed domain name was registered and 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 <xhamster3.com> be transferred to the Complainant.
Date: February 25, 2020