The Complainant is Newegg Inc. of City of Industry, United States of America (“USA”), internally represented.
The Respondent is Jin Yu Ma of Qingdao, China. 2. The Domain Name and Registrar
The disputed domain name (the “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 March 17, 2015. The Center transmitted its request for registrar verification to the Registrar on March 17, 2015. The Registrar replied on March 19, 2015, confirming that it had received a copy of the Complaint, that the Domain Name is registered with it, that the Respondent is the registrant, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applies, that the Domain Name expires on January 15, 2017, that it will remain locked during this proceeding, that the language of the registration agreement is English, and that the Domain Name was registered to the Respondent since at least January 15, 2009. The Registrar also provided the full contact details held on its WhoIs database in respect of the Domain Name.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 19, 2015. The Written Notice sent by courier was signed for on delivery to the Respondent’s street address indicated on the Registrar’s WhoIs database. The electronic copy of the Complaint sent to the Respondent’s email address indicated on the Registrar’s WhoIs database was not rejected.
In accordance with paragraph 5(a) of the Rules, the due date for Response was April 8, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 9, 2015.
The Center appointed Jonathan Turner as the sole panelist in this matter on April 10, 2015. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with the applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant has used the mark NEWEGG as an Internet-based commercial retailer since 2001. Its sales under the mark exceeded USD 2.5 billion in 2010. It has registered the word mark NEWEGG and a logo containing the word “newegg” as trademarks in various countries. The logo was registered in the USA as of October 12, 2004, and in China as of July 7, 2006. The word mark was registered in the USA as of February 12, 2008, and in China as of June 28, 2010. The Complainant has also registered numerous domain names with second level domains consisting of or starting with the string “newegg”.
The Domain Name resolves to a parking page containing links to various other websites.
The Complainant sent a cease and desist letter to the Respondent at his address according to the Registrar’s WhoIs database on December 10, 2014. The letter was returned as undeliverable. 5. Parties’ Contentions A. The Complainant
The Complainant contends that it has rights in the mark NEWEGG by virtue of its registrations and its substantial use of the mark. The Complainant further contends that the Domain Name is confusingly similar to this mark, pointing out that the word “box” is descriptive of the packaging in which its goods are delivered to its customers.
The Complainant denies that the Respondent has any rights or legitimate interests in the Domain Name. The Complainant submits that the use of the Domain Name to locate a parking page presenting links to other websites does not constitute a bona fide offering of goods or services such as to confer any right or legitimate interest on the Respondent. The Complainant states that on the available information the Respondent is not known by the Domain Name and that it has not authorized the Respondent to use the Domain Name.
The Complainant alleges that the Domain Name was registered and is being used in bad faith. The Complainant maintains that the absence of any use of the Domain Name other than to locate a parking page displaying sponsored links constitutes passive use in bad faith.
The Complainant requests a decision that the Domain Name be transferred to it. B. The Respondent
As stated above, the Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is appropriate to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s default in failing to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the mark NEWEGG by virtue of its registrations and its substantial commercial use of this mark.
The Panel further finds that the Domain Name is confusingly similar to this mark, from which it differs only in the addition of the descriptive term “box” and the generic top level domain suffix, which can normally be discounted when considering this requirement of the UDRP. The Panel considers that many Internet users familiar with the Complainant’s business would assume that the Domain Name locates a website of the Complainant.
The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
The Panel considers that the use of the Domain Name to locate a parking page containing sponsored links to other websites does not constitute a bona fide offering of goods or services such as to confer a right or legitimate interest on the Respondent. Nor does it constitute a legitimate noncommercial or fair use of the Domain Name.
The Panel further finds that the Respondent is not known by the Domain Name or any corresponding name.
On the information in the file, there is no other basis on which the Respondent can claim a right or legitimate interest in the Domain Name or any corresponding name. The Panel finds on the evidence that he has no such right. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
The Panel notes from the evidence that the Complainant was carrying on a large Internet-based business under the mark NEWEGG and had registered trademarks in respect of the word “newegg” in the USA and its logo containing “newegg” in China when the Domain Name was apparently registered by the Respondent in 2009.
In these circumstances, the Panel considers that on the balance of probabilities the Respondent was aware of the Complainant’s rights in the mark NEWEGG and of the likelihood of confusion between the Domain Name and this mark when he registered the Domain Name.
The Panel further notes that the Domain Name has been used to locate a web page containing sponsored links to other websites. The Panel infers on the balance of probabilities that the Respondent is obtaining click-through commissions from the sponsored links. Even though Internet users seeking to locate the Complainant’s website are likely to realise on seeing the Respondent’s web page that it is not in fact a web page of the Complainant, their attention may be diverted by one of the sponsored links, in which case the Respondent profits from their initial confusion.
In these circumstances, the Panel finds that by using the Domain Name the Respondent has intentionally attempted to attract Internet users to its web page for commercial gain by creating a likelihood of confusion with the Complainant’s mark as to the source of this page. In accordance with paragraph 4(b)(iv) of the UDRP this constitutes evidence of registration and use of the Domain Name in bad faith.
There is no evidence on the file displacing this presumption. In the circumstances, the Panel finds that the Domain Name was registered and is being used in bad faith.
All three requirements of the UDRP are satisfied and it is appropriate to order that the Domain Name be transferred to the Complainant. 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 Domain Name be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Date: April 21, 2015
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