The Complainant is C LLC, United States of America (“USA”), represented by Fross Zelnick Lehrman & Zissu, PC, USA.
The Respondent is weiwei, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 28, 2019. On July 1, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 5, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 8, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint in English on July 11, 2019.
On July 8, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on July 11, 2019. The Respondent did not comment on the language of the proceeding.
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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on July 15, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 4, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 5, 2019.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on August 8, 2019. 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 providing mathematics and science games and education websites, is headquartered in the USA, and was founded in 1997. The Complainant operates a number of official websites under its COOLMATH trademarks, including (for pre-algebra games), (for lessons and games for children), and (for math and science-oriented games). Between June 1, 2018 and May 31, 2019, the Complainant’s websites were visited by no less than 316 million users and received a combined 4.7 billion page views. The Complainant also provides evidence that its websites have received a number of accolades from the education press.
The Complainant owns trademark registrations for COOLMATH, i.e. USA trademark registration number 3404699, registered on April 1, 2008; and for COOLMATH-GAMES, i.e. USA trademark registration number 4671364, registered on January 13, 2015. The disputed domain name was registered on May 30, 2019. The Complainant submits evidence that the disputed domain name directs to an active website, which contains hyperlinks leading to pornographic websites. 5. Parties’ Contentions A. Complainant
The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for COOLMATH and for COOLMATH-GAMES, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith.
The Complainant claims that its trademarks are famous and well-regarded in the education industry, and provides evidence of the contents of its official websites, as well as prior domain name decisions which state that the Complainant and its trademark are wellknown. Moreover, the Complainant provides evidence that the disputed domain name is linked to an active website. The Complainant contends that the website linked to the disputed domain name is used to host pornography. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes use in bad faith.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
The Complainant states that the language of the Registration Agreement is Chinese, which was confirmed by the Registrar on July 5, 2019. Nevertheless, the Complainant filed both its Complaint and amended Complaint in English, and requests that the language of the proceeding be English.
The Panel has carefully considered all elements of this case, in particular, the Complainant's request that the language of the proceeding be English and the lack of response by the Respondent on both the language of the proceeding and on the merits (the Panel notes that the Respondent had the opportunity to respond in either English or Chinese); the fact that the disputed domain name is exclusively in English, and the fact that the Complainant provides prior decisions in UDPR proceedings against the Respondent in which the respective panels have held that the Respondent understands and is capable of communicating in English (see for instance Facebook, Inc. and Instagram, LLC v. Xiamen eName Network Co., Ltd / weiwei, WIPO Case No. D2016-0409); and the fact that Chinese as the language of the proceeding could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of the proceeding shall be English. 6.2. Discussion and Findings on the Merits
The Policy requires the Complainant to prove three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark 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.
Based on the evidence and arguments submitted, the Panel’s findings are as follows: A. Identical or Confusingly Similar
The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in the signs COOLMATH and COOLMATH-GAMES based on its use and registration of these signs as trademarks, incidentally commencing several years prior to the registration of the disputed domain name.
Moreover, as to confusing similarity of the disputed domain name with the Complainant’s trademarks, the disputed domain name consists of two elements, being the descriptive word “kids” combined with the Complainant’s COOLMATH-GAMES trademark (with the omission of the hyphen). The Panel refers to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.7, “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing” (see also Wal-Mart Stores, Inc. v Richard McLeod d/b/a For Sale, WIPO Case No. D2000-0662). The Panel concludes that the disputed domain name contains the entirety of the Complainant’s trademarks, as its only distinctive feature. The addition of the descriptive element “kids” and the omission of the hyphen do not avert the confusing similarity between the disputed domain name and the Complainant’s trademarks. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant’s registered trademark, and that the Complainant has satisfied the requirements of the first element under the Policy. B. Rights or Legitimate Interests
The Complainant has demonstrated that the Respondent is not an authorized reseller, service provider, licensee or distributor, and is not making legitimate noncommercial use or fair use of the Complainant’s trademarks. To the contrary, the website linked to the disputed domain name is currently used as a platform listing hyperlinks to pornographic websites. The Panel therefore considers that none of the circumstances of right or legitimate interests envisaged by paragraph 4(c) of the Policy apply. Furthermore, the Respondent is not commonly known by the disputed domain name. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements for the second element under the Policy. C. Registered and Used in Bad Faith
Given the reputation and fame of the Complainant’s trademarks, the registration of the disputed domain name, which incorporates such trademarks in their entirety, and is very similar to the Complainant’s official domain names, is clearly intended to mislead and divert consumers to the disputed domain name. Even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned, and owns, trademarks in both COOLMATH and COOLMATH-GAMES and uses these trademarks extensively. In the Panel’s view, this clearly indicates the bad faith of the Respondent in registering the disputed domain name, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith.
As to use of the disputed domain name in bad faith, the website linked to the disputed domain name is currently used as a platform listing hyperlinks to pornographic websites. Publishing and promoting pornographic content at the website linked to the disputed domain name (and therefore by reference to the Complainant’s trademarks) is obvious bad faith use, and a blatant attempt to unlawfully profit from the registration of the disputed domain name. See in this regard also prior UDPR decisions such as Milan Presse v. See Privacyguardian.Org / Home, Maxim Antonov,WIPO Case No. D2019-0640. This finding is further reinforced by the fact that a large share of the Complainant’s target public are minors, and that the disputed domain name also targets minors, since it contains the term “kids”. Moreover, the Complainant also provides a number of prior UDPR decisions involving domain name squatting activities by the Respondent (see for instance Facebook, Inc. and Instagram, LLC v. Xiamen eName Network Co., Ltd / weiwei,supra), from which the Panel deducts that the Respondent has engaged in a pattern of trademark-abusive domain name registrations. On the basis of these elements, the Panel rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith.
Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under 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.
Deanna Wong Wai Man
Sole Panelist
Date: August 16, 2019
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