ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION PhonePe Private Limited v. 甄凤元 (Zhen Feng Yuan) Case No. D2022-2357 1. The Parties The Complainant is PhonePe Private Limited, India, represented by Saikrishna & Associates, India. The Respondent is 甄凤元 (Zhen Feng Yuan), China. 2. The Domain Name and Registrar The disputed domain name
is registered with eName Technology Co., Ltd. (the "Registrar"). 3. Procedural History The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 29, 2022. On June 30, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 1, 2022, 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 1, 2022, 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 5, 2022. On July 1, 2022, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on July 4, 2022. 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 7, 2022. In accordance with the Rules, paragraph 5, the due date for Response was July 27, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 28, 2022. page 2 The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on August 2, 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 Background The Complainant is a company active in the digital payments and financial services industry and is headquartered in India. The Complainant claims to be one of India's leading and most popular providers of digital payments and particularly markets a digital application with the name "PhonePe", which has over 380 million registered users and a market share of over 47% in Unified Payments Interface (UPI) transactions in India. The Complainant provides evidence that it owns a trademark portfolio for PHONEPE, including, but not limited to, Indian trademark registration number 3221673 for PHONEPE (word mark), registered on March 29, 2016; and Indian trademark registration number 3228504 for PHONEPE (logo mark), registered on April 5, 2016. The Complainant also provides evidence that it owns a trademark portfolio for other related marks registered in India including FONEPE and FONEPAY and that it owns a portfolio of official domain names, including , registered on December 2, 2015. The disputed domain name was registered on September 1, 2016, and is therefore of a later date than the abovementioned trademarks of the Complainant. The Complainant submits evidence that the disputed domain name directs to an inactive webpage. 5. Parties' Contentions A. Complainant The Complainant essentially contends that the disputed domain name is identical to its trademarks for PHONEPE, 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 distinctive and well-known, and submits company and marketing information as well as third party media reports regarding its business operations. The Complainant particularly claims that the Respondent is a habitual cyber-squatter and that there are no justifications for the use of its trademark in the disputed domain name. The Complainant also argues that the use made of the disputed domain name by the Respondent amounts to passive holding of the disputed domain name, which, it claims, does not confer any rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant claims that given the distinctiveness and fame of its PHONEPE trademark, the Respondent has registered and is using the disputed domain name in bad faith and argues that the Respondent is trying to sell the disputed domain name for an amount in excess of the out-of-pocket costs related to the disputed domain name. The Complainant requests that the disputed domain name be transferred to it. B. Respondent The Respondent did not reply to the Complainant's contentions. page 3 6. Discussion and Findings 6.1. Preliminary Issue: Language of the administrative 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 the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. According to the Registrar's verification response, the language of the Registration Agreement for the disputed domain name is Chinese. Nevertheless, the Complainant filed its Complaint and its amended Complaint in English, and requested that English be the language of the proceeding. The Panel notes that the Respondent did not comment on the language of the proceeding and did not submit any arguments on the merits of this proceeding. The Panel has carefully considered all elements of this case, and considers the following elements particularly relevant: the Complainant's request that the language of the proceeding be English; the lack of comments on the language of the proceeding and the lack of response on the merits of this proceeding by the Respondent (the Panel notes that the Respondent was invited in a timely manner by the Center to present its comments and response in either English or Chinese, but chose not to do so); the fact that the disputed domain name contains the Complainant's trademark in its entirety and that the disputed domain name is written in Latin letters and not in Chinese characters; and, finally, the fact that Chinese as the language of this proceeding could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel grants the Complainant's request, and decides that the language of this administrative 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 shown that it has valid rights in the mark PHONEPE based on its portfolio of registered trademarks for PHONEPE and based on its intensive use thereof. As to whether the disputed domain name is identical to or confusingly similar with the Complainant's trademarks, the Panel considers that the disputed domain name consists of only the mark PHONEPE, given that the applicable generic Top-Level Domain ("gTLD"), ".net" in this case, is viewed as a standard registration requirement, and may as such be disregarded by the Panel, see in this regard the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.11.1. The Panel concludes that the disputed domain name is identical to the Complainant's trademarks for PHONEPE, and decides that the Complainant has satisfied the requirements of the first element under the Policy. page 4 B. Rights or Legitimate Interests On the basis of the evidence and arguments submitted, the Panel finds that the Complainant makes out a prima facie case that that the Respondent is not, and has never been, an authorized reseller, service provider, licensee, or distributor of the Complainant, is not a bona fide provider of goods or services under the disputed domain name, and is not making legitimate noncommercial use or fair use of the disputed domain name. The Panel also notes that the Respondent is not commonly known by the disputed domain name. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). However, no evidence or arguments have been submitted by the Respondent in reply. Upon review of the facts and evidence provided by the Complainant, the Panel notes that the disputed domain name directs to an inactive webpage and is not being used. In this regard, the Panel finds that registering a domain name and holding it passively, without making any use of it, does not confer any rights or legitimate interests in the disputed domain name on the Respondent (see in this regard earlier UDRP decisions such as Bollore SE v. 赵竹飞 (Zhao Zhu Fei), WIPO Case No. D2020-0691 and Vente-Privee.Com and Vente-Privee.com IP S.à.r.l. v. 崔郡 (jun cui), WIPO Case No. D2021-1685). Furthermore, the Panel considers that the nature of the disputed domain name, being identical to the Complainant's trademarks for PHONEPE, carries a risk of implied affiliation and cannot constitute fair use, as it effectively impersonates the Complainant (see WIPO Overview 3.0, section 2.5.1). On the basis of the foregoing, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant has satisfied the requirements of the second element under the Policy. C. Registered and Used in Bad Faith The Panel finds that the registration of the disputed domain name, which is identical to the Complainant's widely-known trademark, by the Respondent, which is an unaffiliated entity, creates a presumption of bad faith (see in this regard the WIPO Overview 3.0, section 3.1.4). Furthermore, the Panel considers the disputed domain name, being identical to the Complainant's marks, to be so closely linked and obviously connected to the Complainant and its trademarks that the Respondent's registration of this disputed domain name persuasively points toward the Respondent's bad faith. In the Panel's view, the preceding elements establish the bad faith of the Respondent in registering the disputed domain name. As to use of the disputed domain name in bad faith, the Complainant provides evidence that the disputed domain name links to an inactive website. In this regard, the WIPO Overview 3.0, section 3.3 provides: "[f]rom the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or "coming soon" page) would not prevent a finding of bad faith under the doctrine of passive holding." The Panel has reviewed all elements of this case, and attributes particular relevance to the following elements: the fact that the disputed domain name is identical to the Complainant's trademarks; the high degree of distinctiveness and the well-known nature of the Complainant's trademarks; the Complainant's evidence from which it appears that the Complainant's domain name acquisition agent was requested by the Respondent to submit only "strong 6-figure offers" for the acquisition of the disputed domain name, from which the Panel deducts that the Respondent is trying to sell the disputed domain name for an amount in excess of the out-of-pocket costs related to the disputed domain name; and, finally, the unlikelihood of any good faith use to which the disputed domain name may be put by the Respondent. In these circumstances, the Panel considers that the passive holding of the disputed domain name and the offer for sale by the Respondent constitutes use of the disputed domain name in bad faith. On the basis of the foregoing elements, the Panel finds that it has been demonstrated that the Respondent has used, and is using the disputed domain name in bad faith. Finally, the Respondent 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 page 5 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/ Deanna Wong Wai Man Sole Panelist Date: August 15, 2022
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