The Complainant is Groupon, Inc. of Chicago, Illinois, United States of America ("US"), represented by Greenberg Traurig, LLP, US.
The Respondent is LiSong of Hefei City, Anhui, China. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 9, 2016. On February 10, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 11, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on February 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 13, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 14, 2016.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on March 24, 2016. 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 company, organized under the laws of the US.
According to the uncontested allegations of the Complainant, the Complainant is a global leader of local commerce, which offers consumers products all over the world.
According to the uncontested allegations of the Complainant it operates in 47 countries and in over 500 markets with over 250 million subscribers worldwide. It has nearly 12,000 employees worldwide.
The Complainant is owner of many trademark registrations for trademarks incorporating its GROUPON trademark in the US and also in China, where the Respondent seems to be based, and in 50 other countries. In particular, the Complainant owns US registration No. 3,685,954 for GROUPON, registered on September 22, 2009; US registration No. 4,222,645 for GROUPON, registered on October 9, 2012; US registration. No. 4,302,184 for GROUPON GOODS, registered on March 12, 2013, US registration No. 4,283,740 for GROUPON RESERVE, registered on January 29, 2013 and Chinese trademark registration No. 10547657 for GROUPON registered on August 21, 2013 and Chinese trademark registration No. 1085957 for GROUPON NOW, registered on July 12, 2011.
The disputed domain name was registered on September 9, 2015. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name and 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
Before engaging in the threefold discussion of paragraph 4(a) of the Policy, the Panel will briefly address the procedural issue relating to the default of the Respondent. The implications of a default in this case are telling since the Complainant has the burden of proof, according to paragraph 4(a) of the Policy ("In the administrative proceeding, the complainant must prove that each of these three elements are present"). As such, the Panel cannot merely grant the Complainant's request automatically due to the default, but it has to examine instead the evidence presented to determine whether or not the Complainant has proved its case, as required by the Policy. See FNAC v. Gauthier Raymond,WIPO Case No. D2004-0881; Sonofon A/S v. Vladimir Aleksic,WIPO Case No. D2007-0668; Gaudi Trade SpA v. Transure Enterprise Ltd,WIPO Case No. D2009-1028.
The Panel shall now proceed to the analysis of the evidence in this case, based on the three elements of paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The Complainant has presented evidence to demonstrate that it owns registered trademark rights internationally.
The mere fact that the Respondent has added the "s" and one number "9" and the generic Top-Level Domain ("gTLD") ".com" does not to this Panel affect the essence of the matter: the disputed domain name is identical or confusingly similar to the trademark of the Complainant and, in the circumstances of this case, is by itself sufficient to establish the criterion of identity or confusing similarity for purposes of the Policy, as many previous UDRP panels have found. See e.g., Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Koninklijke Philips Electronics N.V. v. K. Harjani Electronics Ltd.,WIPO Case No. D2002-1021; DFDS A/S v. NOLDC INC,WIPO Case No. D2006-1070; American Automobile Association, Inc. v. Bladimir Boyiko and Andrew Michailov,WIPO Case No. D2006-0252; Nationwide Mutual Insurance Company v. Whois Agent, WHois Privacy Protection Service, Inc./Zhichao Yang,WIPO Case No. D2015-1129 and Facebook, Inc., v. on behalf of customers,WIPO Case No. D2016-0244
In view of the above, the Panel finds that the Complainant has discharged its burden of proof on this point and holds that the disputed domain name is confusingly similar to the Complainant's trademark GROUPON. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of circumstances which, if found by a panel to be proved based on its evaluation of the evidence presented, shall demonstrate a registrant's right to or legitimate interest in a domain name. These examples are discussed in turn below, with regard to the specific facts of this case.
(i) Use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute: the Respondent is not making a bona fide offering of goods. In fact, the Respondent is using the disputed domain name to divert Internet users to an unrelated website featuring pornography images, which in the circumstances is not a bona fide offering of goods and services.
(ii) An indication that the Respondent has been commonly known by the disputed domain name, even if it has acquired no trademark rights: In this case, there is no such indication from the present record.
(iii) Legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks at issue: Again, in this case there is no such indication from the record.
The Respondent does not seem to have any trademark registrations including the term "Groupon". Additionally, it is to be noted that the Respondent did not present evidence of any license by the Complainant, with whom there seems to exist no relationship whatsoever.
As a conclusion on this point, the Panel finds that the Complainant has established an uncontested, prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant's argumentation on this point is mainly based on the circumstances mentioned in paragraph 4(b)(iv) of the Policy in order to demonstrate the Respondent's bad faith registration and use of the disputed domain name.
In reviewing the present case, it appears that the Respondent has registered the disputed domain name in bad faith.
The Panel finds it highly unlikely that the Respondent would register randomly and unintentionally a domain name that is identical or confusingly similar to the Complainant's GROUPON trademark. Rather, on a reasonable examination of the evidence, it seems to this Panel more likely that such registration and use would be motivated by a hoped-for capitalization, i.e., commercial gain from the Complainant's reputation.
Further, according to the uncontested allegations of the Complainant, the disputed domain name at the time of filing the Complaint was used to attract Internet users to the Respondent's site, featuring pornographic images and material of sexual content. Such use of the Complainant's trademark by the Respondent is evidence of bad faith.
In addition, the use of the disputed domain name by the Respondent is to encourage consumers to believe that it is connected to the Complainant.
The Panel also notes the default of the Respondent, which in the present circumstances "reinforces the inference of bad faith registration and bad faith use". The Hongkong and Shanghai Banking Corporation Limited v. Bill Lynn,WIPO Case No. D2001-0915.
As a consequence of the above, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
Accordingly, the Panel finds that the Complainant has successfully proven that the disputed domain name is identical or confusingly similar to trademarks and service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith. 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.
Christos A. Theodoulou
Sole Panelist
Date: March 28, 2016
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