The Complainant is LinkedIn Corporation of Mountain View, California, United States of America, represented by The GigaLaw, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.
The Respondent is yin jun of Huai’an, Jiangsu, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 23, 2015. On June 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 24, 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.
On June 25, 2015, the Center transmitted an email to the parties in English and Chinese regarding the language of proceeding. On June 25, 2015, the Complainant submitted its request that English be the language of proceeding. The Respondent did not submit its comment within the specified due date.
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 July 6, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 26, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 27, 2015.
The Center appointed Sok Ling MOI as the sole panelist in this matter on August 10, 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
Headquartered in Mountain View, California, United States, the Complainant is a public company listed on the New York Stock Exchange (NYSE). Founded in 2003, the Complainant is now one of the world’s largest and most popular professional network on the Internet, operating offices in major cities of the world.
The Complainant is the owner of numerous trade mark registrations consisting of or including the trade mark LINKEDIN worldwide, including the following trade mark registrations in the United States of America: Country Trade Mark Registration Number Registration Date
USA
3,074,241
March 28, 2006
USA
3,074,242
March 28, 2006
USA
3,303,349
October 2, 2007
USA
3,971,644
May 31, 2011
USA
4,007,079
August 2, 2011
The Complainant owns the domain name , registered on November 2, 2002 which it uses in connection with its primary website.
The disputed domain name was registered on June 30, 2014, long after the Complainant has registered the trade mark LINKEDIN in the United States of America. According to the evidence provided by the Complainant, the disputed domain name resolved to a pay-per-click (“PPC”) parking page containing links to certain business websites relating to publishing and other unrelated products/services. 5. Parties’ Contentions A. Complainant
Founded in 2003, the Complainant is the world’s largest professional network on the Internet with more than 347 million members worldwide. The Complainant has more than 7,600 full-time employees and operates websites in 24 languages. It has offices in Chicago, Los Angeles, New York, San Francisco, Washington D.C. all in the United States, London, United Kingdom of Great Britain and Northern Ireland, Hong Kong, China, Singapore, Sydney, Australia, Tokyo, Japan, Beijing, China and other cities.
The Complainant has rights in the LINKEDIN mark. It is the owner of an extensive number of trade mark registrations worldwide that consist of or include the mark LINKEDIN. The services associated with these trade mark registrations include “online business networking services” and “providing online career networking services and information in the fields of employment, recruitment, job resources, job listings”.
A1. The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights:
The second level of the disputed domain name wholly incorporates the Complainant’s LINKEDIN mark, and is therefore confusingly similar to the Complainant’s LINKEDIN mark.
A2. The Respondent has no rights or legitimate interests in respect of the disputed domain name:
The Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the LINKEDIN trade mark in any manner.
To the Complainant’s knowledge, the Respondent has never been commonly known by the disputed domain name and has never acquired any trade mark rights in the disputed domain name. Based on the WhoIs record, the Respondent’s name is “yin jun”, not likely associated with LINKEDIN or any similar marks.
By including commercial links for third-party websites, even if the links are for unrelated services, the Respondent has failed to create a bona fide offering of goods or services under the Policy.
By using the disputed domain name in connection with a monetized parking page, the Respondent is clearly not making legitimate noncommercial or fair use of the disputed domain name.
A3. The disputed domain name was registered and is being used in bad faith:
Given the Complainant’s established rights in, and long history of use of, the LINKEDIN trade mark, and given the Complainant’s significant international presence and brand recognition, it is likely that the Respondent knew of the Complainant’s mark and has sought to obtain a commercial benefit by attracting Internet users based on the confusion caused by adopting a similar domain name.
The Respondent is using the disputed domain name in connection with a monetized parking page that contains links related to the Complainant (e.g., “Linkedin Recruiter”) as well as unrelated links. Furthermore, it is offering the disputed domain name for sale to the public on the same page. This constitutes bad faith.
The Respondent’s motive in registering the disputed domain name and using the website is simply to disrupt the Complainant’s relationship with its customers or potential customers, or to attempt to attract Internet users for potential gain.
The Respondent’s registration of the disputed domain name obviously prevents the Complainant from reflecting its mark in a corresponding domain name. The Respondent has engaged in a pattern of such conduct as confirmed by a previous domain name dispute proceeding under the Uniform Rapid Suspension System (URS) (i.e. Expedia, Inc. v. yin jun, URS Claim No. FA1611442 which led to the suspension of ), and also confirmed by the Respondent’s registration of numerous other domain names that contain or are confusingly similar to well-known trade marks owned by third parties. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, 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.
Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the parties are treated fairly and given a fair opportunity to present their respective case.
The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding for the following reasons:
(a) The disputed domain name contains Latin characters and an English trade mark; and
(b) The website at the disputed domain name is in English.
On the record, the Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In addition to the reasons offered by the Complainant which the Panel accepts, the Panel notes that:
a) The Respondent has registered other domain names consisting of Latin characters, for example , , , , , , and , based on the reverse WhoIs lookup information provided by the Complainant;
(b) The Center has notified the Respondent of the proceeding in both Chinese and English;
(c) The Respondent has been given the opportunity to present its case in this proceeding and to respond to the issue of the language of the proceeding but has chosen not to do so; and
(d) the Center informed the Respondent that it would accept a Response in either English or Chinese.
Considering the above circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case.
The Panel has taken into consideration the fact that to require the Complaint and all supporting documents to be translated in Chinese would in the circumstances of this case cause an unnecessary cost burden to the Complainant and unfairly disadvantage the Complainant. The proceeding would be unnecessarily delayed.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that (i) it shall accept the Complaint and all supporting materials as filed in English; and (ii) English shall be the language of the proceeding and the decision will be rendered in English. 6.2 Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:
(i) the disputed domain name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(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.
On the basis of the evidence introduced by the Complainant, the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in LINKEDIN by virtue of its use and registration worldwide of the same as a trade mark. The disputed domain name incorporates the Complainant’s trade mark LINKEDIN in its entirety. The addition of the generic Top-Level Domain (“gTLD”) “.wang” — which is also the Chinese phonetic (hanyu pinyin) equivalent of “网” which means “Internet” — does not serve to distinguish the disputed domain name from the Complainant’s trade mark, and should generally be disregarded for the purpose of the similarity assessment.
Consequently, the Panel finds that the disputed domain name is identical with the Complainant’s trade mark.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the Complainant bears the burden of establishing that the Respondent lacks rights or legitimate interests in the disputed domain name. However, once the Complainant makes a prima facie showing under paragraph 4(a)(ii), the burden shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao internet foshan co, ltd,WIPO Case No. D2013-0974.)
According to evidence furnished by the Complainant, the Respondent does not appear to be commonly known by the name “linkedin”, nor is he in any way authorized or licensed to use the LINKEDIN trade mark or to seek registration of any domain name incorporating the trade mark.
The Complainant has furnished evidence to show that the disputed domain name resolved to a website which appears to be a parking page containing commercial links to related services, entitled “LinkedIn Recruiter”, “LinkedIn Professional Network”, “LinkedIn Careers”, “Sky on FreeView” etc. The consensus view of previous UDRP panels is that use of a domain name to post parking and landing pages or PPC links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a “bona fide offering of goods or services” or from “legitimate noncommercial or fair use” of the domain name. This is especially so where such links result in a connection to goods or services competitive with those of the rights holder (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph. 2.6.).
In this case, the website is nothing more than a skeletal list of links directing Internet users to websites of unrelated third parties. The purpose of the website, presumably for commercial gain trading on the trade mark value of the Complainant’s mark, is not indicative of a bona fide offering of goods or services but instead suggests a lack of rights or legitimate interests in the disputed domain name.
The Panel notes that the Respondent is offering the disputed domain name for sale to the public on the same website. This, in the Panel’s opinion, is not indicative of or a legitimate noncommercial or fair use .
The Panel is therefore satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent has however failed to respond.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s websites 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 the Respondent’s websites or location or of a product.
The Panel accepts the Complainant’s assertion that the Respondent was likely aware of the Complainant when it registered the disputed domain name. The Complainant and its trade mark LINKEDIN enjoy a worldwide reputation. A cursory Internet search would have disclosed the LINKEDIN trade mark and its use by the Complainant.
The purpose of the website is presumably for commercial gain trading on the trade mark value of the Complainant’s mark. As of the date of this decision, the website has become inactive. The Panel is therefore unable to ascertain if the links are valid and indeed linked to third party websites. Even if the links are not valid or are mere “parking” that do not result in the generation of incidental revenue from advertising referrals, the Panel is not precluded from finding bad faith. The Panel must examine all the circumstances of the case to determine whether the Respondent is acting in bad faith.
The Panel determines that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case.
According to the evidence of the Reverse WhoIs information provided by the Complainant, the Respondent has registered a number of domain names comprising mis-spellings of known trade marks, such as , , , and . The Panel is therefore satisfied that there is prima facie proof that the Respondent is engaged in a pattern of cybersquatting. The Panel is also inclined to believe that the Respondent has registered the disputed domain name (with the gTLD “.wang” which may mean “Internet”) in order to prevent the Complainant from reflecting its mark in a corresponding domain name. As such, the Panel finds that the circumstances referred to above are further indicators of bad faith.
Moreover, the Panel finds that the offer of the disputed domain name for sale to the public by the Respondent is indicative of bad faith. Efforts to contact the Respondent at the physical address provided to the Registrar failed which suggests that the Respondent had provided false contact details.
Taking into account all the above circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) 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 transferred to the Complainant.
Sok Ling MOI
Sole Panelist
Date: August 28, 2015
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