The Complainant is International Business Machines Corporation, United States of America (“United States”), internally represented.
The Respondent is yong xue huang, huang yong xue, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 3, 2021. On the following day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 9, 2021, 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 proceedings commenced on February 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 2, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 3, 2021. The Center appointed Matthew Kennedy as the sole panelist in this matter on March 11, 2021. 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 produces computer hardware, software, accessories and other goods. It was incorporated in 1911 and has been officially named “International Business Machines” since 1924. The Complainant owns trademark registrations for IBM in multiple jurisdictions, including the following Chinese trademark registrations: Number Registration date Class 5744980 December 7, 2009 28 5744981 December 14, 2009 25 5744982 October 14, 2009 21 5744983 November 21, 2009 18 5744984 April 7, 2012 16 5744985 October 7, 2009 14 5744986 September 14, 2009 9 5744987 December 7, 2009 1 These trademark registrations remain current. The Complainant has made extensive use of its IBM mark. In 2020, it was ranked the fourteenth most valuable global brand by BrandZ and the fourteenth best global brand by Interbrand. The Respondent is an individual resident in China. The disputed domain name was registered on November 6, 2020. It formerly resolved to a landing page displaying advertising for, and hyperlinks to, gambling and pornography websites. At the time of this Decision, it resolves to a registrar parked page with pay-per-click links. The Registrar confirmed that the language of the Registration Agreement is English. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s IBM trademark. The letters “ibm” in the disputed domain name are exactly the same as the trademark. The only difference is the addition of the letters “tp”. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has not been licensed, contracted, or otherwise permitted by the Complainant in any way to use the IBM trademark, or to apply for any domain name incorporating such trademark, nor has the Complainant acquiesced in any way to such use or application of the IBM trademark by the Respondent. The Respondent has been actively using the IBM trademark in the disputed domain name to promote its website for illegitimate commercial gains. The disputed domain name was registered and is being used in bad faith. The Complainant’s trademarks are well-known around the world. The Respondent has been intentionally attempting to create a likelihood of confusion by using the disputed domain name to attract visitors to his/her pornographic and online gambling websites, and thus to generate revenue through such unauthorized use of the IBM trademark. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that a complainant must prove each of the following elements: (i) the disputed domain name is identical or confusingly similar to a trademark 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. A. Identical or Confusingly Similar Based on the evidence submitted, the Panel finds that the Complainant has rights in the IBM mark. The disputed domain name incorporates the IBM mark as its initial element. The disputed domain name also includes the letters “tp”. However, this does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark as the IBM trademark remains clearly recognizable within the disputed domain name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. The disputed domain name also includes a generic Top‑Level Domain (“gTLD”) (“.com”). As a mere technical requirement of registration, this element is generally disregarded in the comparison between a domain name and a trademark for the purposes of the first element of paragraph 4(a) of the Policy. See WIPO Overview 3.0, section 1.11. Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy: (i) before any notice to [the respondent] 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] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark 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 trademark or service mark at issue. As regards the first and third circumstances set out above, the disputed domain name formerly resolved to a webpage displaying advertising for, and hyperlinks to, gambling and pornography websites. The disputed domain name is confusingly similar to the Complainant’s IBM mark. The Complainant submits that it has not licensed, contracted, or otherwise permitted the Respondent in any way to use the IBM mark, or to apply for any domain name incorporating such trademark. Nothing on the Respondent’s website had any apparent connection to the letters “ibmtp”. The Respondent’s webpage operated for his/her own commercial gain or that of the operators of the linked websites, or both. At the time of this Decision, the disputed domain name resolves to a registrar parked page with pay-per-click links. Accordingly, the Panel does not consider either of the Respondent’s uses of the disputed domain name to be in connection with a bona fide offering of goods or services within the circumstances of paragraph 4(c)(i) of the Policy. Nor does the Panel consider either use to be a legitimate noncommercial or fair use of the disputed domain name within the circumstances of paragraph 4(c)(iii) of the Policy. As regards the second circumstance set out above, the Respondent’s name is listed in the Registrar’s WhoIs database, as “yong xue huang, huang yong xue”, not the disputed domain name. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by paragraph 4(c)(ii) of the Policy. In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent failed to rebut that prima facie case because he/she did not respond to the Complaint. Therefore, based on the record of this proceeding, the Panel finds that the Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows: “(iv) by using the [disputed] domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.” The disputed domain name was registered in 2020, long after the registrations of the Complainant’s IBM mark, including in China, where the Respondent is resident. The Complainant has acquired a considerable reputation in its IBM mark through its extensive use. The disputed domain name wholly incorporates the IBM mark and combines it only with the letters “tp”. The Respondent offers no explanation for his/her choice of the disputed domain name. In view of these circumstances, the Panel considers it more likely than not that the Respondent knew of the Complainant’s IBM mark at the time that he/she registered the disputed domain name and targeted it in bad faith. The disputed domain name, which is confusingly similar to the Complainant’s IBM mark, formerly resolved to a webpage displaying advertising for, and hyperlinks to, gambling and pornography websites. This use was for the commercial gain of the Respondent or the operators of the linked websites, or both. Accordingly, the Panel considers that the disputed domain name is intended to attract Internet users by creating a likelihood of confusion with the Complainant’s IBM mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website within the terms of paragraph 4(b)(iv) of the Policy. The Panel notes that the use of the disputed domain name has changed and that, at the time of this Decision, it resolves to a registrar parked page with pay-per-click links. This change in use does not affect the Panel’s conclusion; indeed, it may constitute a further indication of bad faith. Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in 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 Matthew Kennedy
Sole Panelist
Date: March 17, 2021
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