The Complainant is Citrix Systems, Inc. of Bedford, Massachusetts, United States of America, represented by Burns & Levinson LLP, United States of America.
The Respondent is Jing Wu of Surrey, British Columbia, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 1, 2012. On October 2, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 3, 2012, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 9, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 29, 2012. On November 1, 2012 the Center extended the deadline of the due date for Response until November 6, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 7, 2012.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on November 19, 2012. 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.
The Panel determines that, pursuant to paragraph 11(a) of the Rules, the language of the proceeding is English, i.e. the language of the Registration Agreement with the Registrar, a copy of which has been provided by the Complainant. 4. Factual Background
Founded in 1989, the Complainant, which is headquartered in the United States of America, is an industry leader in the development, manufacture and distribution of remote access, collaborative tools, virtual desktop solutions and infrastructure systems.
At least as early as 1990, the Complainant adopted and began to use in commerce the designation and trademark CITRIX and a stylized CITRIX design (the “Mark”) for and in connection with virtualization software, hardware and related goods and services. The Mark has been registered in over 32 countries worldwide including the United States of America and also as a European Community Trade Mark. The Mark was first registered in the United States of America on May 5, 1992 (registration number 1685759).
For decades, the Complainant has offered CITRIX-branded products that are used by enterprises and IT professionals around the world to monitor and optimize remote access to applications and for remote desktop management. The Complainant provides support services for all of its products and service offerings.
Currently, more than 230,000 of its customers worldwide rely on the Complainant to provide server and desktop virtualization, networking, software-as-a-service and cloud computing technologies. The Complainant also partners with over 10,000 companies worldwide in more than 100 countries.
The disputed domain name was created on August 22, 2012.
The Complainant was informed that some of its customers received, as early as August 24, 2012, a fraudulent invoice in which the disputed domain name was used to issue and collect payment for services purportedly rendered by “Citrix Support Team”.
On August 31, 2012, counsel for the Complainant sent by e-mail a cease and desist letter to the Respondent. On the same date, the Complainant’s counsel received an email from the Respondent, in which the Respondent claimed to have no knowledge of the invoice and then offered to sell the disputed domain name to the Complainant. 5. Parties’ Contentions A. Complainant
(i) The Complainant submits that the disputed domain name reproduces the Mark in which the Complainant has rights, and is confusingly similar to that mark insofar as the disputed domain name contains the Mark in its entirety. The Complainant also asserts that the addition of the generic words “support team” as a suffix does not serve to distinguish the disputed domain name from the Mark.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends that it has not licensed or otherwise permitted the Respondent to use its Mark or to use any domain name or in any other manner. The Complainant also asserts that the Respondent has never been known by the disputed domain name.
(iii) The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith. It alleges that the Respondent has registered the disputed domain name to create the misleading impression that its business is in some way associated with the Complainant. The Complainant further submits that by registering the disputed domain name, the Respondent sought to exploit for commercial gain the goodwill of the Complainant's Mark, and that by using the disputed domain name, the Respondent has sowed confusion because any Internet user interested in the Complainant and its products is likely to assume that the website identified by the disputed domain name is legitimately associated with the Complainant.
Moreover, by intentionally attempting to attract, mislead and divert Internet users to the Respondent’s website for commercial gain and by creating a deliberate deception with the Complainant’s Mark as to the sponsorship or endorsement of the Respondent’s website, the Respondent is perpetrating a fraudulent scheme, which amounts to bad faith use.
Finally, the Respondent acted in bath faith by violating the provisions of paragraph 2(a) of the Policy and using an incorrect address to register the disputed domain name.
(iv) The Complainant requests that the disputed domain name be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Procedural Aspects
The Respondent is formally in default pursuant to paragraphs 5(e) and 14(a) of the Rules and paragraph 8(c) of the Supplemental Rules, because no Response was received from the Respondent within the time limit set by the Policy and the Rules.
Under the Rules, paragraphs 5(e) and 14(a), the effect of a default by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.
Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name or other remedy have been met.
Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent’s default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant. In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith. B. Requirements of Paragraph 4(a) of the Policy (i) Identical or Confusingly Similar
In comparing the Mark with the disputed domain name, it is evident that the latter, , consists solely of the Mark, followed by the generic term “supportteam”. The addition of generic terms does not ordinarily serve to distinguish a domain name from registered marks. See Banconsumer Service, Inc. v. Mary Langthorne, Financial Advisor,WIPO Case No. D2001-1367; Royal Bank of Canada v. RBC Bank, WIPO Case No. D2002-0672; Allianz AG v. Marian Dinu,WIPO Case No. D2006-0318; Citrix Systems, Inc. v. Citirx Software Solutions,WIPO Case No. D2011-0957; Citrix Systems, Inc. v. Catchway Technologies,WIPO Case No. D2011-0973.
The Panel finds that the disputed domain name is confusingly similar to the Mark, which it incorporates in its entirety.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. (ii) Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of the respondent.
Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing, as the Panel believes the Complainant has made in this case. See Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
As previously noted, the Respondent did not submit a formal Response, thus offering no reason for selecting the disputed domain name. There is no evidence that the Respondent is commonly known by the disputed domain name or a corresponding name or uses a corresponding name in a business, and no information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name.
To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent (i) has no rights or legitimate interests in the disputed domain name, (ii) has no connection to or authorization from the Complainant and (iii) is not commonly known by the disputed domain name.
In the circumstances, the Panel concludes that the Complainant has established the second requirement of paragraph 4(a)(ii) of the Policy. (iii) Registered and Used in Bad Faith
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name similar to the Complainant’s mark.
It is established in prior UDRP decisions that the registration of a domain name confusingly similar to a well-known trademark by any entity that has no relationship to that mark may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Pfizer Inc. v. NA,WIPO Case No. D2005-0072; AT&T Corp. v. John Zuccarini d/b/a Music Wave and RaveClub Berlin,WIPO Case No. D2002-0440; America Online, Inc. v. Anson Chan,WIPO Case No. D2001-0004; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co.,WIPO Case No. D2000-0163; Research in Motion Limited v. Dustin Picov,WIPO Case No. D2001-0492.
At the time the disputed domain name was registered, the Panel finds the Complainant had succeeded for the purposes of the Policy, through its promotional efforts and substantial marketing investments, in associating the Mark in the minds of consumers with the high quality of the products and services offered by the Complainant.
The Panel considers that the notoriety of the Mark worldwide makes it highly unlikely that the Respondent would have chosen to register the disputed domain name randomly, not knowing of the Complainant’s rights in the Mark prior to acquiring the disputed domain name. See Barney’s Inc. v. BNY Bulletin Board,WIPO Case No. D2000-0059; Kate Spade, LLC. v. Darmstadter Designs,WIPO Case No. D2001-1384 citing Cellular One Group v. Paul Brien,WIPO Case No. D2000-0028; SembCorp Industries Limited v. Hu Huan Xin,WIPO Case No. D2001-1092.
The Complainant has argued that the Respondent is not making a bona fide use of the disputed domain name, and has stressed that the disputed domain name is used in connection with a fraudulent scheme whereby consumers looking for the Complainant's legitimate technical support services might unwittingly transact business with and/or be deceived to remit money to the Respondent.
In addition, the Panel notes that many UDRP panels have held that bad faith use of a domain name by the respondent may also result from the fact its good faith use is in no way plausible (see Audi AG v. Hans Wolf, WIPO Case No. D2001-0148), considering the specificity of the activity.
Furthermore, the uncontradicted assertion that the Respondent knowingly provided inaccurate contact information to the Registrar when registering the disputed domain name, in violation of its representations pursuant to paragraph 2(a) of the Policy, is also evidence suggestive of bad faith. See Action Instruments, Inc. v. Technology Associates,WIPO Case No. D2003-0024.
Besides, it is well established that the mere passive holding of a domain name may in appropriate circumstances be evidence not only of bad faith registration, but also of bad faith use. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; DCI S.A. v. Link Commercial Corporation,WIPO Case No. D2000-1232; Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004; Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital,WIPO Case No. D2000-1260.
Some URDP panels have held that an offer from the respondent to sell the disputed domain name to the complainant, as is present in this case for an unspecified financial amount, may be evidence of bad faith. This is because many cybersquatters often wait until a trademark owner launches a complaint before asking for payment. URDP panels are competent to decide whether settlement discussions represent a good faith effort to compromise or a bad faith effort to extort. See CBS Broadcasting, Inc. v. Gaddoor Saidi,WIPO Case No. D2000-0243; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; McMullan Bros., Limited, Maxol Limited, Maxol Direct Limited Maxol Lubricants Limited, Maxol Oil Limited Maxol Direct (NI) Limited v. Web Names Ltd,WIPO Case No. D2004-0078.
Finally, some UDRP panels have held that in certain circumstances, persons who are registering domain names have an affirmative duty to abstain registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and that contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc v. B.B. de Boer,WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex,WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg,WIPO Case No. D2006-0964; mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc.,WIPO Case No. D2007-1141.
The Panel concludes in these circumstances that the Respondent’s registration and use of the disputed domain name are in bad faith and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case. 7. Decision
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 be transferred to the Complainant.
Louis-Bernard Buchman
Sole Panelist
Date: December 2, 2012
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