Complainant is CoryxKenshin LLC, United States of America (“United States”), represented by Carlson, Gaskey & Olds, P.C., United States.
Respondent is Domain Administrator, Fundacion Privacy Services LTD, Panama.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 26, 2021. On November 29, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 2, 2021, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on December 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 2, 2022. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 11, 2022.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on January 25, 2022. 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 BackgroundComplainant is a company organized under the laws of the United States that is active, inter alia, in the online fashion and video gaming industry.
Complainant has provided evidence that it is the registered owner of the national United States trademark (word mark) CORYXKENSHIN, registered with the United States Patent and Trademark Office (USPTO), registration number: 6,482,025, filing date: August 3, 2020, registration date: September 14, 2021, with first use in commerce on April 6, 2009.
Moreover, Complainant has demonstrated to own a YouTube channel named “CoryxKenshin” created on April 26, 2009 that provides on-line videos and includes a store offering for sale Complainant’s products, and since February 29, 2016, Complainant has owned the domain name
Respondent, according to the WhoIs information for the disputed domain name, is a privacy service located in Panama who registered the disputed domain name on May 15, 2020, and offers the very same on the Internet for online sale, and redirects to a parking page with various pay-per-click links.
Complainant requests that the disputed domain name be transferred to Complainant.
5. Parties’ Contentions A. ComplainantComplainant contends to have been commercially active since at least as early as 2009, when Complainant first created a YouTube channel providing for online videos in association with Complainant’s CORYXKENSHIN trademark and fashion products promoted thereunder. The number of Complainant’s subscribers to this YouTube channel has significantly increased over the past three years, strengthening Complainant’s trademark rights as consumers became familiar with the CORYXKENSHIN trademark. In September 2020, Complainant’s YouTube channel had 7.27 million subscribers, adding up to 9.14 million subscribers in March 2021 and lately 11.5 million subscribers in November 2021.
Complainant submits that the disputed domain name is confusingly similar to Complainant’s CORYXKENSHIN trademark, as it includes the latter in its entirety, with the addition of the middle letter “x” in Complainant’s trademark. Moreover, Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name since (1) Respondent is using the confusingly similar disputed domain name without Complainant’s permission to do so; (2) Respondent is not commonly known by the disputed domain name; and (3) Complainant owns registered and common law rights in the CORYXKENSHIN trademark. Finally, Complainant argues that Respondent has registered and is using the disputed domain name in bad faith since (1) Respondent does not offer any goods or services under the disputed domain name, but has simply put it on the Internet for sale; (2) given the confusing similarity between Complainant’s CORYXKENSHIN trademark and the disputed domain name, it is difficult to infer any legitimate use of the latter by Respondent; and (3) offering the disputed domain name on the Internet for sale shows that Respondent knew or should have known that someone with rights in a name related to the disputed domain name would have been interested therein.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsUnder paragraph 4(a) of the Policy, Complainant carries the burden of proving:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) that Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Respondent’s default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(f) of the Rules provides that if Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute solely based upon the Complaint. Further, according to paragraph 14(b) of the Rules, the Panel may draw such inferences from Respondent's failure to submit a Response as it considers appropriate.
A. Identical or Confusingly SimilarThe Panel concludes that the disputed domain name
The disputed domain name incorporates the CORYXKENSHIN trademark almost entirely with a misspelling caused by simply omitting the middle letter “x”. Numerous UDRP panels have recognized that where a domain name incorporates a trademark in its entirety, 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 trademark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7). The fact that the disputed domain name thereby shows no letter “x” which leads to a misspelling of Complainant’s CORYXKENSHIN trademark is not at all inconsistent with such finding of confusing similarity. Misspelled or typo-squatted domain names are, on the contrary, intended to be confusing so that Internet users, who unwittingly make common type errors, will enter the typo-squatted domain name instead of the correct spelled trademark (see e.g., National Association of Professional Baseball Leagues, Inc, d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002‑1011).
In this context, the Panel has certainly realized that Complainant’s national United States trademark (word mark) CORYXKENSHIN (USPTO No. 6,482,025) was filed on August 3, 2020, and formally registered on September 14, 2021, whereas the disputed domain name was registered already on May 15, 2020. However, the fact that a domain name may have been registered before a complainant has acquired trademark rights does not by itself preclude a complainant’s standing to file a UDRP case, nor a panel’s finding of identity or confusing similarity under the first element of the UDRP, but may need to be addressed in connection with the finding whether or not a respondent acted in bad faith (see WIPO Overview 3.0, section 1.1.3).
Therefore, Complainant has established the first element under the Policy as set forth by paragraph 4(a)(i).
B. Rights or Legitimate InterestsThe Panel is further convinced on the basis of Complainant’s undisputed contentions that Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name nor can it be found that Respondent has made a legitimate noncommercial or fair use thereof without intent for commercial gain.
Respondent obviously has not been authorized to use Complainant’s CORYXKENSHIN trademark, either as a domain name or in any other way. Also, there is no reason to believe that Respondent’s name somehow corresponds with the disputed domain name and Respondent does not appear to have any trademark rights associated with the terms “Coryxkenshin” or “Corykenshin” on its own. Finally, Respondent so far obviously has neither used the disputed domain name for a bona fide offering of goods or services nor for a legitimate noncommercial or fair purpose, but merely has offered it for online sale and for a parking page offering pay-per-click links. Given that the disputed domain name consists entirely of Complainant’s somewhat fanciful CORYXKENSHIN trademark together with a deliberate misspelling constituting typo-squatting by omitting the middle letter “x”, such use of the disputed domain name does not represent a bona fide offering because it capitalizes on the reputation and goodwill of Complainant’s trademark. (see section 2.9. of WIPO 3.0)
Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in respect of the disputed domain name. Having done so, the burden of production shifts to Respondent to come forward with appropriate evidence demonstrating such rights or legitimate interests (see WIPO Overview 3.0, section 2.1). Given that Respondent has not submitted a Response, it has not met that burden.
Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy.
C. Registered and Used in Bad FaithThe Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith.
Registering and using the disputed domain name, which is confusingly similar to Complainant’s fanciful CORYXKENSHIN trademark, thereby including a deliberate misspelling constituting typo-squatting of such trademark by omitting the middle letter “x”, for no other reason but to offer the disputed domain name for online sale and for a parking page with pay-per-click links, is a clear indication that Respondent either (1) registered the disputed domain name primarily for the purpose of selling it to Complainant being the owner of the CORYXKENSHIN trademark for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (2) intentionally attempted to attract, for commercial gain, Internet users to Respondent’s own website and online offer by creating a likelihood of confusion with Complainant’s CORYXKENSHIN trademark as to the source, sponsorship, affiliation or endorsement of Respondent’s website. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(i) as well as 4(b)(iv) of the Policy.
In connection with this finding, the Panel has well taken into consideration that Complainant’s national United States trademark (word mark) CORYXKENSHIN (USPTO No. 6,482, 025) was filed on August 3, 2020, and formally registered on September 14, 2021, whereas the disputed domain name was registered by Respondent already on May 15, 2020. At the same time, it must be noted that such CORYXKENSHIN trademark was registered on the grounds of an evidenced use by Complainant in the United States commerce already since as early as April 6, 2009, which is well before the registration of the disputed domain name took place. Further, Complainant has demonstrated to own a YouTube channel named “CoryxKenshin” created on April 26, 2009, that provides on-line videos and includes a store offering for sale Complainant’s products, and has registered the domain name
Therefore, the Panel holds that Complainant has also satisfied the third element under the Policy as set forth by paragraph 4(a)(iii).
7. DecisionFor 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
Stephanie G. Hartung
Sole Panelist
Date: February 8, 2022