WIPO Domain Name Decision D2019-0212 for fenxt.com
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Blackbaud, Inc. v. Wang Zhengxin Case No. D2019-0212 1. The Parties
The Complainant is Blackbaud, Inc. of Charleston, South Carolina, United States of America (“United States”), represented by Nelson Mullins Riley & Scarborough, LLP, United States.
The Respondent is Wang Zhengxin of Hunan, China. 2. The Domain Name and Registrar
The disputed domain name is registered with B, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 28, 2019. On January 29, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 12, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 12, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 13, 2019.
On February 12, 2019, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on February 13, 2019. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amended 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 in English and Chinese of the Complaint, and the proceedings commenced on February 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 11, 2019.
The Center appointed Matthew Kennedy as the sole panelist in this matter on March 14, 2019. 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 cloud software company providing non-profit software and services headquartered in the United States and with international offices, including one in Hong Kong, China. The Complainant works with more than 40,000 non-profit customers in over 60 countries. Its products include Financial Edge NXT, which is a cloud-based upgrade to its Financial Edge accounting software. The Complainant is the registered proprietor of United States trademark registration number 4,906,122 for FINANCIAL EDGE NXT, registered on February 23, 2016 in respect of services in class 42. The Complainant has also used the term FE NXT continuously since May 1, 2015 in connection with products and services associated with its Financial Edge NXT software.
The Respondent is an individual located in China. He registered the disputed domain name on July 23, 2017. The disputed domain name resolves to a website titled Big Banana films, net and online cinema, in Chinese. The website offers pornographic videos and displays advertising for gambling websites. Although the advertising is in Chinese, most of the website’s other textual content is in English. 5. Parties’ Contentions A. Complainant
The disputed domain name is identical to the Complainant’s trademark FE NXT. The Complainant obtained valid common law rights in the FE NXT Mark in the United States and internationally dating back as early as 2015. The disputed domain name consists solely of that mark.
The Respondent has no prior rights or legitimate interests in the disputed domain name. The Complainant has not authorized the Respondent to use the FE NXT mark. The Respondent is not a licensee of the FE NXT mark. Moreover, the Respondent is not commonly known by the name FE NXT. The Respondent is using the disputed domain name, which is identical to the FE NXT mark, to host the website which features pornographic and gambling content.
The disputed domain name was registered and is being used in bad faith. The disputed domain name was registered and is being used for the sole purpose of attracting Internet traffic to the Respondent’s website, which features pornographic and gambling content. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
Paragraph 11(a) of the Rules provides 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 Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English. Its main arguments are (i) that the language of the disputed domain name and the Complainant’s trademark is English, (ii) the website to which the disputed domain name resolves contains English language content, (iii) the Respondent owns numerous other English-language domain names, (iv) the Respondent is using a hosting company in the United States which presumably does business in English;