WIPO Arbitration and Mediation Center
 

ADMINISTRATIVE PANEL DECISION

Ebay Inc. v. Wangming

Case No. D2006-1107

 
1. The Parties
The Complainant is Ebay Inc., California, United States of America, represented by Cooley Godward, LLP, United States of America.
The Respondent is Wangming, Beijing, China.
 
2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp.
 
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 30, 2006. On September 1, 2006, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the domain name at issue. On September 4, 2006, Xin Net Technology Corp. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. On September 19, 2006, the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 of the Complaint, and the proceedings commenced on September 19, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 9, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 10, 2006.
The Center appointed Hong Xue, Diane Cabell and Colin Yee Cheng Ong as panelists in this matter on November 15, 2006. On November 20, 2006, the Center notified the Parties that one Panelist appointed in this case, Ms. Diane Cabell, resigned from the Panel due to unforeseeable reasons. On December 14, 2006, the Center sent out the new Notification of Appointment of Administrative Panel and Projected Decision Date, appointing Hong Xue, John R. Keys, Jr. and Colin Yee Cheng Ong as panelists in this case and requiring the Panel to forward its decision to the Center by December 28, 2006.
After receiving the Center’s Notification on December 14, 2006, the Panel finds that it was properly constituted. Each member of 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.
The language of the proceeding is English. The language of the Registration Agreement is Chinese. The Complainant requested that the proceeding be conducted in English and presented argument in support of that request, including that the domain name is in English, that it resolves to an English language website, and that the Respondent, on its website, has made changes to the Complainant’s text that are syntactically and grammatically correct in English. The Center decided to: 1) accept the Complaint in English and commence the proceeding, 2) accept a Response in either Chinese or English, 3) appoint a Panel familiar with both languages, if available; and 4) allow the Panel to make the decision as to the correct language of the proceeding, with discretion to write a decision in either language and to request translation of either party’s submissions. The Center communicated this decision to the Respondent at the time it notified the Respondent of the commencement of the proceeding.
The Panel, after taking into account all the relevant elements, concludes that it is appropriate to proceed in the English language. The Panel has discretion to determine the correct language of the proceeding based upon the circumstances of the case. See Finter Bank Zurich v. Shumin Peng, WIPO Case No. D2006-0432. Based upon the circumstances here, we find no prejudice or unfairness to the Respondent in proceeding and rendering the Panel’s decision in the English language. While the Registration Agreement is in Chinese, the disputed domain name and the website to which it resolves are in English, and the Respondent otherwise demonstrates proficiency in English. The evidentiary materials presented are all in English. The Center communicated a number of accommodations to the Respondent to allow it to respond in Chinese, and the Center appointed two Chinese speakers to the Panel. Nevertheless, the Respondent did not submit a response to the Complaint.
 
4. Factual Background
The Complainant is Ebay Inc., which has operated the “” website under the name “Ebay” continuously since 1995 in connection with an online trading/auction business. Beginning in 1999, the Complainant obtained several US federal registrations for the EBAY word mark and its seven-color logo, as follows:
EBAY, No. 2,218,732, registered Jan. 19, 1999;
EBAY, No. 2,367,932, registered July 18, 2000;
Ebay with red, blue, yellow, green, purple, orange and brown logo, No. 2,410,023, registered Dec. 5, 2000;
EBAY, No. 2,501,043, registered Oct. 23, 2001;
EBAY, No. 2,518,652, registered Dec. 11, 2001;
EBAY, No. 2,578,260, registered June 11, 2002;
EBAY, No. 2,592,515, registered July 9, 2002;
EBAY, No. 2,604,374, registered Aug. 6, 2002;
EBAY, No. 2,662,130, registered Dec. 17, 2002;
EBAY, No. 2,666,767, registered Dec. 24, 2002;
EBAY, No. 2,700,675, registered March 25, 2003;
EBAY, No. 2,700,836, registered Mar. 25, 2003;
EBAY, No. 2,737,342, registered July 15, 2003;
EBAY, No. 2,744,717, registered July 29, 2003;
EBAY, No. 2,759,150, registered Sep. 2, 2003;
The Complainant also owns trademark registrations for the EBAY word mark in many other countries, including China, Japan and the Republic of Korea.
The Respondent registered the domain name on March 20, 2006. This domain name resolves to a website on which goods are offered for sale in a manner similar to the way in which the Complainant’s website offers goods for sale.
 
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is nearly identical with and confusingly similar to the Complainant’s well-known mark EBAY.
The Complainant’s website under the name EBAY has operated continuously since 1995 in connection with online commerce, trading and the Internet auction services.
The Complainant owns several US federal registrations for the EBAY word mark. The earliest registration was acquired in January 1999.
The Complainant also owns the trademark registration for the EBAY word mark in many other countries, including China, Japan, Vietnam, the Republic of Korea, etc.
The Complainant’s other trademark, the “EBAY Seven Color Logo”, has been registered in the United States of America and many other countries since 2000.
The Complainant’s primary website operating at “” provides the services in a number of countries, including China, Japan, Singapore, etc. and is advertised in those markets.
The Complainant contends that the EBAY word mark and EBAY Seven Color Logo mark are famous through its advertisement and promotion of the mark and through media reports, and that the reputation of the EBAY mark has been recognized in cases decided by the United States Patent and Trademark Office and the United States District Court for the Northern District of New York.
The disputed domain name is registered in the name of Wangming. The Complainant finds that the Respondent’s website located at “www.” shows the name of the site “” in the same distinctive font and color scheme as is found in the Complainant’s EBAY Seven Color Logo mark. Apart from the similar logo, the Respondent’s site is highly similar to the format and content of the Complainant’s EBAY website.
The Complainant contends that the disputed domain name that consists of the famous EBAY mark plus an additional triple “a” in the middle of the mark sounds nearly identical with and is confusingly similar to the Complainant’s EBAY mark and the domain name . In the view of the Complainant, the Respondent is attempting to capitalize on the EBAY name and mark by adopting the disputed domain name which conveys the same overall visual and phonetic impression as the Complainant’s mark. The Complainant contends that the Respondent intends to mislead consumers to believe that the disputed domain name and its operation are affiliated with EBAY.
The Complainant contends that the Respondent has no legitimate right or interests in the disputed domain name. The Respondent registered the disputed domain name on March 20, 2006, when the Complainant had well-established rights in its EBAY marks not only in the United States but also throughout the several Far East markets, including China where the Respondent purporte