WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cards Against Humanity, LLC v. Liuningning
Case No. DCC2015-0003
1. The Parties
The Complainant is Cards Against Humanity, LLC of Harrisburg, PA, United States of America (“U.S.), represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, U.S. .
The Respondent is Liuningning of Beijing, China.
2. The Domain Name and Registrar
The disputed domain name <cardsagainsthumanity.cc> is registered with Xin Net Technology Corp. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 22, 2015. On May 22, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 25, 2015, 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.
On May 28, 2015, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On May 28, 2015, the Complainant submitted its request that English be the language of the proceeding. The Respondent did not submit any comments within the specified due date.
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(a) and 4(a), the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on June 4, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 24, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 25, 2015.
The Center appointed Francine Tan as the sole panelist in this matter on July 2, 2015. 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 the exclusive creator, manufacturer and marketer of a card game (“the Game”) and related expansion packs, boxes and specialty cards. It has sold the Game only through limited channels. No other parties other than the Complainant designs, manufactures or markets the Game. The only places to purchase legitimate copies of the cards and other products comprising the Game are directly from the Complainant on its official website (“www.cardsagainsthumanity.com”), on the Complainant’s official <amazon.com> pages, or through licensed U.S. game stores that have purchased the Complainant’s products through the Complainant’s “new U.S. wholesale program”. The Complainant states the Game has since its commencement of use in December 2009 become an Internet phenomenon over the last several years and is extremely popular, reaching an audience of millions around the world.
The disputed domain name was registered on March 24, 2014.
Registrations for the CARDS AGAINST HUMANITY trade mark and A PARTY GAME FOR HORRIBLE PEOPLE tagline were secured in the U.S. in March 2013. The said trade mark has been extensively promoted, advertised and used at trade shows, point-to-sale display materials, and on the Complainant’s official website. CARDS AGAINST HUMANITY is also used by the Complainant as its business name. Application for the said trade dress was filed with the U.S. Patent and Trademark Office in October 2013 and registration was secured in October 2014.
5. Parties’ Contentions
1. For purposes of the UDRP, the Complainant contends that it is well known in the industry and is recognized for the high quality, ingenuity and creativity of the Game. Amongst other things, the Game has been recognized and promoted by Amazon.com as the “#1 Best Seller” game sold on its storefront, and has been reviewed and heralded in multiple publications and on popular Internet sites including the Huffington Post.
The Complainant states it has also since December 2009 been continuously using the tagline A PARTY GAME FOR HORRIBLE PEOPLE and its distinctive trade dress consisting of white lettering on a black background with vertically aligned text in a specific font.
The Complainant asserts that the CARDS AGAINST HUMANITY trade mark has become famous around the world and is readily identified with the Game. Significant goodwill attaches to the Complainant’s CARDS AGAINST HUMANITY trade mark.
The Complainant states that the Respondent has maintained a fraudulent website located at the disputed domain name for the purpose of selling counterfeit CARDS AGAINST HUMANITY products. The Respondent’s website prominently features the CARDS AGAINST HUMANITY trade mark, the Complainant’s said trade dress and said tagline. The Respondent’s website purports to offer for sale, through a “Card Games Online Wholesale Store”, the Game including a “basic version” (i.e. the boxed Game set), “extended edition” (i.e. the expansion packs), special editions and bundles at wholesale prices. International shipping of these items is offered. The Respondent’s website is in English and the products sold are priced in U.S. dollars. The “overall look and feel” of the Respondent’s website is similar to, and some of the images and sections appear to be copied directly from the Complainant’s official website. The Respondent’s website purports to be a “Professional cards against humanity Wholesale online store” and to offer “Group Sales” although there is no such thing offered by the Complainant. Amongst other things, the Respondent’s website appears to offer extra products not offered on the Complainant’s website and therefore it is clear that the products offered for sale on the Respondent’s website are counterfeit.
The disputed domain name is identical to its CARDS AGAINST HUMANITY trade mark.
The disputed domain name incorporates the said trade mark in its entity; the addition of the element “.cc” does not serve to distinguish the disputed domain name from the Complainant’s trade mark.
2. The Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant is the exclusive owner of the CARDS AGAINST HUMANITY trade mark. The Respondent is not a licensee of the Complainant nor has the Respondent obtained permission from the Complainant to use the said trade mark. There is no evidence that the Respondent is commonly known by the name CARDS AGAINST HUMANITY nor is there evidence that it has ever operated any bona fide or legitimate business under the disputed domain name. The Respondent is using the disputed domain name to misdirect or “bait” Internet users seeking the Complainant’s products to its own site where the Respondent falsely advertises and claims to sell the Complainant’s genuine merchandise. The Respondent’s lack of a legitimate interest in the disputed domain name is also evidenced by the fact that on its website, a card game called “Crabs Adjust Humidity” is advertised as a “totally unofficial and unauthorized add-on product for CARDS AGAINST HUMANITY”. These are clearly sold in competition with the Complainant.
3. The Respondent has registered and is using the disputed domain name in bad faith. The Respondent clearly has knowledge of the Complainant’s rights in the CARDS AGAINST HUMANITY trade mark and has sought, upon registration of the disputed domain name, to engage in unlicensed and unauthorized sale of counterfeit goods. It is inconceivable that the Respondent was unaware of the Complainant’s rights therein. The disputed domain name fully incorporates the Complainant’s said trade mark. The Respondent’s website not only reflects the CARDS AGAINST HUMANITY trade mark but is made to resemble the Complainant’s official website. By giving the impression that it offers genuine licensed CARDS AGAINST HUMANITY products for international wholesale, the Respondent has attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion by its use of the CARDS AGAINST HUMANITY trade marks. Internet users are thereby falsely led to believe that the Respondent’s website is somehow affiliated with or endorsed by the Complainant. Moreover, the Respondent’s offering on its website of products which compete with the Complainant’s Game is further evidence of bad faith registration and use.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of the Proceeding
Paragraph 11(a) of the Rules stipulates that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The language of the Registration Agreement is Chinese but the Complainant has requested that English be adopted as the language of the proceeding. The reasons given were as follows:
(I) The Respondent’s website to which the disputed domain name resolves is written entirely in English. Its customer support “live chat” is even available in English.
(II) The Respondent’s website purports to offer for sale many of the Complainant’s products to U.S. customers in U.S. dollars and to ship those products to the U.S.
(iii) The Complainant is situated in the U.S. and it is not familiar with the Chinese language whereas the Respondent appears to be proficient in English.
The Respondent did not respond on the issue of the language of the proceeding.
In the exercise of its discretion pursuant to paragraph 11 of the Rules and with due regard to paragraph 10(c) of the Rules (requiring the Panel to “ensure that the administrative proceeding takes place with due expedition”), the Panel holds that English shall be the language of the administrative proceeding. The combination of the words making up the disputed domain name as well as the content on the Respondent’s website indicate that the Respondent has a rather high level of familiarity and comfort with the English language. If the Complainant were required to submit all the documents in Chinese by having them translated, the costs would be prohibitive and unduly delay the proceeding.
The Panel therefore determines that it would be appropriate in this case for English to be the language of the proceeding.
B. Identical or Confusingly Similar
The Complainant has established it has rights in CARDS AGAINST HUMANITY, both by virtue of prior use and by virtue of trademark registration. The entire CARDS AGAINST HUMANITY trade mark has been incorporated into the disputed domain name and the only difference lies in the occurrence of the country code Top-level domain “.cc” in the disputed domain name. It is a well-established principle that the TLD is generally disregarded when considering whether a domain name is identical or confusingly similar to a trade mark of a complainant.
The Panel therefore holds that the disputed domain name is identical to the Complainant’s CARDS AGAINST HUMANITY trade mark. Paragraph 4(a)(i) of the Policy has been satisfied.
C. Rights or Legitimate Interests
The Panel finds that a prima facie case has been established by the Complainant that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has no relationship with the Respondent and has never authorized it to register or use the trade mark CARDS AGAINST HUMANITY in a domain name. There is no evidence which shows that the Respondent has been commonly known by a name corresponding to the disputed domain name or that it has ever operated any bona fide or legitimate business under the disputed domain name. In view of the widespread reputation of the Complainant and its trade mark, it would be difficult to envisage how the Respondent (which appears to be of Chinese nationality or origin) would be able to prove it has a right or legitimate interest in the disputed domain name and which, in this case, comprises a rather interesting and sophisticated play on a well-known English phrase, “crime against humanity”.
The Respondent has not responded nor offered evidence or arguments to counter what has been asserted by the Complainant. The Panel accordingly concludes that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(a)(ii) of the Policy has been satisfied.
D. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent had knowledge of the Complainant and of the Complainant’s CARDS AGAINST HUMANITY mark when it registered the disputed domain name. It is not possible to conceive of any plausible genuine and legitimate use of the disputed domain name by the Respondent. This is a clear case where a well-known mark has been misappropriated and used by the Respondent for the specific purpose of “[attracting], for commercial gain, Internet users to [its] web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of [its] web site or location or of a product or service on [its] web site or location” (paragraph 4(b)(iv) of the Policy). The apparent flagrant copying of text and images from the Complainant’s website, the offering of counterfeit goods as well as goods which compete with those of the Complainant, and the Respondent’s use on its website of the Complainant’s CARDS AGAINST HUMANITY trade mark without its consent, all provide strong and compelling evidence of the Complainant’s bad faith registration and use of the disputed domain name.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been 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 <cardsagainsthumanity.cc> be transferred to the Complainant.
Date: July 16, 2015