The Complainant is F5 Networks, Inc. of Seattle, Washington, United States of America, represented by Rosen Lewis, PLLC, United States of America.
The Respondent is Zhao Jiafei of Suqian, Jiangsu, 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 June 19, 2015. On June 22, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 23, 2015, 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 June 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 16, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 17, 2015.
The Center appointed Debrett G. Lyons as the sole panelist in this matter on July 23, 2015. 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 facts relevant to the decision in this case are that:
(1) the Complainant is the owner of the trade mark F5 NETWORKS;
(2) the trade mark is the subject of United States Patent and Trademark Office Registration No. 2,399,278, registered October 31, 2000, filed March 12, 1999;
(3) the disputed domain name was registered on May 2, 2015;
(4) the disputed domain name has, in the past, resolved to a holding page with miscellaneous advertising of third party goods and services;
(5) at the present time the disputed domain name is not in use and is listed for sale; and
(6) there has been no commercial or other relationship between the Parties and the Complainant has not authorized the Respondent to use the trade mark or to register any domain name incorporating the trade mark. 5. Parties' Contentions A. Complainant
The Complainant asserts trade mark rights in F5 NETWORKS and alleges that the disputed domain name is identical or confusingly similar to the trade mark.
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant alleges that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
It is the responsibility of the Panel to consider whether the requirements of the Policy have been met, regardless of the fact that the Respondent failed to submit a reply. Having considered the Complaint and the available evidence, the Panel finds the following: i. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trade mark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to the trade mark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trade mark rights. It is accepted that a trade mark registered with a national authority is evidence of trade mark rights for the purposes of the Policy. The Complainant provides evidence of registration of the trade mark and the Panel accepts that the Complainant has trade mark rights.
For the purposes of testing confusing similarity, the generic Top-Level Domain ".info" can be ignored and so the Panel finds that the disputed domain name is identical to the Complainant's trade mark.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. ii. Rights or Legitimate Interests
The Complainant has the burden to establish that the Respondent has no rights or legitimate interests in the disputed domain name. Nevertheless, it is well-settled that the Complainant need only make out a prima facie case, after which the onus shifts to the Respondent to rebut such prima facie case by demonstrating rights or legitimate interests1 .
Notwithstanding the lack of a Response to the Complaint, paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
"(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."
The publicly available WhoIs database identifying the Respondent as registrant does not support any conclusion that the Respondent might be commonly known by the disputed domain name. There is no evidence that the Respondent has trade mark rights in the disputed domain name, registered or not.
The disputed domain name is currently open to offers to purchase it and in the past has resolved to a holding page with links to a host of third party providers of goods and services, some of which may be competitive with those offered by the Complainant under the trade mark. Accordingly, there is no evidence of use of the disputed domain name in relation to a bona fide offering of goods or services.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the Respondent in failing to reply has not rebutted such prima facie case.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and so the Complainant has satisfied the second element of the Policy. iii. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out circumstances which shall be evidence of the registration and use of a domain name in bad faith. They are:
"i. circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
ii. you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
iii. you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
iv. by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."
The Panel finds that the Respondent's conduct falls under paragraph 4(b)(iv) of the Policy. The Panel has already found the disputed domain name to be identical to the Complainant's trade mark. The Panel finds that the likelihood of confusion as to source is therefore inevitable. Paragraph 4(b)(iv) of the Policy requires an intention for commercial gain on the part of the Respondent and the Panel accepts as more likely than not to be true the Complainant's assertion, which is supported by evidence in the form of screenshots, that (at least in the past) the resolving website generated revenue for the Respondent by way of referral fees.
The Panel finds that the Respondent registered and is using the disputed domain name in bad faith and, accordingly, the Complainant has satisfied the third and final limb of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules and with the Complainant's request, the Panel orders that the disputed domain name be transferred to the Complainant.
Debrett G. Lyons
Sole Panelist
Date: August 6, 2015
1 See, Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624.
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