WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Wikimedia Foundation, Inc. v. Yangmin Fang, Huli Jing Internet Holdings Ltd.
Case No. D2015-2140
1. The Parties
The Complainant is Wikimedia Foundation, Inc. of San Francisco, California, United States of America ("United States"), internally represented.
The Respondent is Yangmin Fang, Huli Jing Internet Holdings Ltd. of Belmopan, Belize.
2. The Domain Name and Registrar
The disputed domain name <wiipedia.com> is registered with EPAG Domainservices GmbH (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 24, 2015. On November 25, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 26, 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.
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 November 30, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 20, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 21, 2015.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on January 4, 2016. 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
According to the Complainant it is a non-profit charitable organization dedicated to encouraging the growth, development and distribution of free, multi-lingual educational content. The Complainant was founded in 2003 and today manages 16 free knowledge projects built and maintained by a community of over 70,000 active volunteers. The many well-known projects managed by the Complainant include Wikimedia Commons, a shared media repository of almost 25 million freely usable images, sound files and video files, Wiktionary which is an online dictionary and thesaurus, Wikivoyage which is a free worldwide travel guide and most importantly Wikipedia, a free online encyclopedia compiled edited and maintained by over 70,000 active contributors. The Complainant provides technological, legal, fundraising administrative support for these projects which together represent the seventh most visited web property in the world.
The Complainant primarily fulfils its administrative and supportive role through a network of chapters – independent organisations that share the Complainants mission and support its activities with a specified geographical region. These chapters collect donations, organise local events and projects, promote and support current projects and initiatives of the Complainant and provide points of contact for potential partners and supporters. They adopt names that clearly link them to the Complainant and they are granted the right to use the Complainants trademarks for work, publicity and fundraising purposes. Currently there are 41 chapters that span the globe, including at least one on each habitable continent and an additional 28 chapters are under discussion. Extracts from the Complainants official or chapters' websites are set out at Annex 3 to the Complaint.
Wikipedia is the oldest and largest project of the Complainant. Since its founding in 2001, it has grown to become a trusted and well regarded cultural institution and today offers over 35.5 million articles in 228 languages, has over 500 million unique visitors each month and is consistently ranked as one of the top 10 most popular websites in the world. Every day visitors from around the world can actively make tens of thousands of edits and create thousands of new articles to augment the knowledge held by Wikipedia. Their efforts make Wikipedia one of the most comprehensive and widely used reference work ever compiled. Sample pages from Wikipedia are set out at Annex 4 to the Complaint.
The Complainant has obtained registration of the mark WIKIPEDIA from inter alia the United States Patent and Trademark Office and has used the mark since January 2001. Details of some of the trademark registrations in the United States and internationally are set out in detail in the Complaint. The Panel is satisfied that the Complainant has worldwide trademark rights in the mark WIKIPEDIA. Moreover copies of the registration certificates evidencing ownership of the marks referred to in the Complaint are set out at Annex 5. In summary, the Complainant owns approximately 218 trademark registrations worldwide for the trademark WIKIPEDIA.
In the absence of a response, there is no evidence from the Respondent. The Panel therefore proceeds to determine the Complaint upon the basis of the evidence submitted by the Complainant only.
5. Parties' Contentions
The Complainant maintains:
1. The disputed domain name is confusingly similar to the trademarks WIKIPEDIA in which the Complainant has exclusive rights.
2. The Respondent has no rights or legitimate interests in the disputed domain name. It is not a licensee or otherwise affiliated with the Complainant. The Complainant has never authorised or otherwise condoned or consented to the registration of the disputed domain name.
3. The disputed domain name was registered and is being used in bad faith for the purpose of the Respondent intentionally attempting to attract, for commercial gain, Internet users to its website under the disputed domain name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has worldwide trademark rights in the mark WIKIPEDIA. The Complainant submits that the disputed domain name <wiipedia.com> is a confusingly similar typo-variant of the mark WIKIPEDIA and is being used in "complete disregard" of the Complainant's exclusive right to use their trademark.
It submits that the absence of the letter "k" does little to differentiate between the Complainant's marks and the disputed domain name. The overall impression of the disputed domain name is to suggest that the Respondent intended to take advantage of typographical errors made by Internet users who might be searching for the Complainant's website.
The Complainant relies upon the fact that several previous UDRP panels have found that that disputed domain names based on slight variations of the mark WIKIPEDIA are confusingly similar. It relies, for example upon the Wikimedia Foundation, Inc. v. Domain Administrator, Private Registration / Scot Elliott, Transcom Ltd., WIPO Case No. D2015-1404. It submits that the alteration of a single letter is sufficient evidence of typo-squatting; a practice which is considered to be inherently confusing and insufficient to distinguish the disputed domain name.
It submits that the Respondent is using the disputed domain name to take advantage of Internet users searching for Wikipedia and that the absence of the letter "k" does nothing to alter the association with the Complainant's mark. For example, the close proximity between the letters "i" and "k" on a standard keyboard means that a user searching for the Complainant's trademark could easily fail to strike the letter "k" on their keyboard and as a result be redirected the Respondent's website.
In the absence of a response, the Panel agrees with the Complainant's submissions on this element and finds that the disputed domain name is confusingly similar to the mark WIKIPEDIA.
B. Rights or Legitimate Interests
The Complainant points out that the Respondent has no rights or legitimate interests in the disputed domain name. It is not a licensee or otherwise affiliated with the Complainant. Moreover the Complainant has never authorised or otherwise condoned or consented to the Respondent's registration of the disputed domain name.
There is no evidence that the Respondent has neither registered the disputed domain name in connection with a bona fide offering of goods or services nor used the disputed domain name for legitimate noncommercial or fair use purposes. Rather the Complainant points out the Respondent is using <wiipedia.com> to disseminate malicious computer software or "malware". This can be seen from Annex 7 to the Complaint which consists of screenshots of the website under the disputed domain name. Use of a well-known mark to deceive Internet users and maliciously infect their computer systems is not a bona fide use of the mark.
In this case, the Respondent's use of the disputed domain name puts users at risk. A parallel example is the earlier UDRP decision of Wikimedia Foundation, Inc. v. Mildred Valentine / Domain Hostmaster, WIPO Case No. D2014-2283.
In all these circumstances, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy and has shown that the Respondent does not have any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Complainant submits that by using the disputed domain name the Respondent has intentionally attempted to attract for commercial gain Internet users to a website by creating in a likelihood of confusion with the Complainant's well-known mark. The Complainant points out that the use of the mark to maliciously redirect users is not a bona fide use.
The dissemination of malware through a predictable typo-variant is often used to steal consumer information for commercial gain and this is evidence of bad faith.
Even if it is unclear whether or not the Respondent intended to manipulate the mark WIKIPEDIA for ordinary commercial gain, the Respondent's malicious conduct is still considered evidence of bad faith following earlier decisions such as Spoke Media Holdings, Inc. v. Andrey Volkov, WIPO Case No. D2010-1303.
Accordingly it follows and the Panel finds that the Respondent is using the disputed domain name (which it registered with knowledge of the Respondent's marks) in bad faith and in disregard of the Complainant's exclusive right to use its mark WIKIPEDIA.
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 <wiipedia.com> will be transferred to the Complainant.
Clive Duncan Thorne
Date: January 15, 2016