The Complainant is The NASDAQ OMX Group, Inc. of New York, New York, United States of America ("USA"), represented by Joseph E. McNamara, USA.
The Respondent is 11, Yi O of China. 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 September 19, 2014. On September 22, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 23, 2014, the Registrar transmitted by email to the Center its verification disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on September 26, 2014.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 1, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 21, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 22, 2014.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on October 23, 2014. 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 leading global exchange group that delivers trading, clearing, exchange technology, regulatory, securities listing, public company services and other related services across the world, including trading and clearing across multiple asset classes, market data products, financial indexes, capital formation solutions, financial services, corporate solutions and market technology products and services. The Complainant owns over 50 NASDAQ trademarks in more than 30 jurisdictions dating back to 1971.
The Respondent is listed as "11, yi o". The relevant publicly available WhoIs record appears to include false/inaccurate contact information. The disputed domain name was registered on August 31, 2014. Prior to its current inactive status, the disputed domain name brought visitors to a landing page displaying the Complainant's NASDAQ logo. 5. Parties' Contentions A. Complainant
To establish confusing similarity, the Complainant generally need only show that its mark is recognizable as such within the domain name. The only difference between the disputed domain name and the Complainant's NASDAQ mark is the addition of the geographically descriptive term "Asia", which term is insufficient to prevent confusing similarity.
There exists no relationship between the Complainant and the Respondent that would give rise to any license, permission or other right under which the Respondent is authorized to use the Complainant's NASDAQ mark. To the knowledge of the Complainant, the Respondent possesses no trademark rights in NASDAQASIA or any similar marks, and the Respondent is not commonly known to operate under NASDAQASIA or any similar term. Furthermore, the Respondent's use of the disputed domain name to direct visitors to a deceptive website does not constitute a bona fide offering of goods or services. For these reasons, the Respondent has no rights or legitimate interest in the disputed domain name.
Considering that NASDAQ has become a well-known trademark around the globe, it can be assumed that the Respondent was aware of the Complainant's trademark when registering the disputed domain name. Additionally, the Respondent's use of the disputed domain name creates a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement thereof. Finally, the Respondent has provided false contact information when registering the disputed domain name, including a false email address and false address information. For these reasons, the Respondent has registered and has been using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
According to the consensus view of UDRP panels, the addition of geographical terms such as "Asia" to a trademark in a domain name is normally insufficient in itself to avoid a finding of confusing similarity (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.9; cf. also the similar fact patterns in The NASDAQ Stock Market, Inc. v. Sun People, Inc.,WIPO Case No. D2001-1495; The Nasdaq Stock Market, Inc. v. Sungjo Park,WIPO Case No. D2002-0595; and The Nasdaq Stock Market, Inc. v. Vidudala Prasad,WIPO Case No. 2001-1493).
The Complainant has thus fulfilled paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name.
Based on the Complainant's contentions, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Although the website at the disputed domain name currently is inactive, as per the evidence submitted by the Complainant, this Panel is satisfied that the Respondent used the disputed domain name to divert Internet traffic to an unrelated website containing the Complainant's logo, for the purpose of achieving commercial gain. Such conduct constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy. In addition, a number of previous panels have held that the provision of false information on applying for registration (as in the present case) is further evidence of bad faith (cf. e.g. Mrs. Eva Padberg v. Eurobox Ltd.,WIPO Case No. D2007-1886).
Accordingly, the Complainant has also satisfied paragraph 4(a)(iii) of the Policy. 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 cancelled.
Tobias Zuberbühler
Sole Panelist
Date: October 28, 2014
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