ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Meta Platforms, Inc. v. Huade Wang, shilei, and 石磊 (Lei Shi) Case No. D2023-1344 1. The Parties Complainant is Meta Platforms, Inc., United States of America ("USA" or "U.S."), represented by Hogan Lovells (Paris) LLP, France. Respondents are Huade Wang, China; shilei, China; and 石磊 (Lei Shi), China. 2. The Domain Names and Registrars The disputed domain names , , , , , , , , , , and are registered with Chengdu West Dimension Digital Technology Co., Ltd ("Registrar 1"). The disputed domain names , , , , and are registered with Dynadot, LLC ("Registrar 2"). The disputed domain name is registered with Cloud Yuqu LLC ("Registrar 3"). Registrar 1, Registrar 2, and Registrar 3 are collectively referred to as the "Registrars". 3. Procedural History The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 28, 2023. On March 29, 2023, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On March 29, 2023, the Registrar 2 transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent (Redected for Privacy, Dynadot Privacy Service) and contact information in the Complaint. On March 30, 2023, the Registrar 1 and Registrar 3 transmitted by email to the Center their verification responses disclosing registrant and contact information for the disputed domain names which differed from the named Respondent (Redected for Privacy) and contact information in page 2 the Complaint. The Center sent an email communication to Complainant on March 30, 2023, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint in English on April 4, 2023. On March 30, 2023, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On March 30, 2023, Complainant confirmed its request that English be the language of the proceeding. Respondents 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 Respondents in Chinese and English of the Complaint, and the proceedings commenced on April 6, 2023. In accordance with the Rules, paragraph 5, the due date for Response was April 26, 2023. Respondents did not submit any response. Accordingly, the Center notified Respondents' default on April 27, 2023. The Center appointed Yijun Tian as the sole panelist in this matter on May 4, 2023. 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 A. Complainant Complainant, Meta Platforms, Inc., is a company incorporated in the U.S. It operates, inter alia, Facebook, Instagram, Meta Quest (formerly Oculus) and WhatsApp. Complainant's focus is to bring the metaverse to life and to help people connect, find communities and grow businesses. Founded in 2004, Complainant, formerly known as "Facebook, Inc.", is the leading provider of online social networking services, and it had approximately 2.91 billion monthly active users and 1.93 billion daily active users on average worldwide (as of December 31, 2021). Facebook is currently ranked as the 9th app by downloads for iOS phones worldwide. Currently inaccessible in mainland China where Respondents are based, Complainant's services are far from unknown to the Chinese public. Numerous Chinese press articles (notably including China's state media People's Daily) have reported on the international popularity of Complainant's services. Facebook has acquired a considerable reputation and goodwill throughout the world, including in China (Annex 11 to the Complaint). Complainant is the owner of numerous FACEBOOK trademarks worldwide, including the U.S. Trademark registered on January 10, 2006 (the U.S. Trademark registration number 3041791), the Chinese Trademark registered on September 21, 2009 (the Chinese Trademark registration number 5251162), and the International Trademark registered on December 23, 2014 (the International registration number 1280043). B. Respondents Respondents are Huade Wang, China; shilei, China; and 石磊 (Lei Shi), China. The disputed domain name was registered by Huade Wang on August 30, 2022. The disputed domain names , , , and were registered by shilei on August 30, 2022. The disputed domain names , , , , , , , , , , page 3 , and were registered by 石磊 (Lei shi) on August 30, 2022. All the disputed domain names resolve to a parking page with pay-per-click ("PPC") links. All the associated parking pages display similar webpage contents and similar PPC links to various third-party goods and services. 5. Parties' Contentions A. Complainant Complainant contends that all the disputed domain names are confusingly similar to Complainant's FACEBOOK trademark. All the disputed domain names incorporate the FACEBOOK mark or the misspelling of Complainant's FACEBOOK mark in its entirety with the addition of the descriptive terms "location" and "settlement" and variations under the generic Top-Level Domain ("gTLD") ".com". The addition of the terms is not sufficient to eliminate the confusing similarity. The gTLD ".com" is irrelevant when assessing whether a domain name is identical or confusingly similar to a mark as it is a functional element. Complainant contends that Respondents have no rights or legitimate interests in the disputed domain names. Complainant contends that the disputed domain names were registered and are being used in bad faith. Complainant requests that the disputed domain names be transferred to it. B. Respondents Respondents did not reply to Complainant's contentions. 6. Discussion and Findings 6.1. Consolidation of Multiple Respondents The Panel notes that the present Complaint has been filed against multiple Respondents and Complainant has submitted a request for consolidation. On this subject, section 4.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") provides inter alia as follows: "The WIPO Center may accept, on a preliminary basis, a consolidated complaint where the criteria described below are prima facie met. Any final determination on consolidation would be made by the appointed panel, which may apply its discretion in certain circumstances to order the separation of a filed complaint." The Panel finds that Complainant has provided sufficient evidence to establish that the disputed domain names or corresponding websites are subject to common control, for the following reasons: (a) all 17 disputed domain names have been used to host similar websites with PPC links; (b) all 17 disputed domain names were registered with only three Registrars on the same day; (c) all 17 disputed domain names are associated with the same IP address, and are hosted on the same name servers; (d) all 17 disputed domain names have been registered in a similar naming pattern, i.e., consisting of Complainant's FACEBOOK mark or the misspelling of Complainant's FACEBOOK mark thereof with the descriptive terms (e.g., "location" and "settlement" and their variations) under the gTLD".com"; (e) 16 disputed domain names were registered by shilei and 石磊 (Lei Shi) who have the same email address and phone number. page 4 In addition, Respondents did not object to Complainant's request for consolidation. In all of these circumstances, the Panel considers that it is procedurally efficient to allow Complainant to proceed with the single Complaint as filed and is satisfied that such consolidation is fair and equitable to all of the Parties. Accordingly, Respondents are hereinafter referred to as "Respondent". 6.2. Language of the Proceeding The language of the Registration Agreements for the disputed domain names , , , , and is English while the language of the Registration Agreements for the remaining disputed domain names is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant initially filed its Complaint in English, and has requested that English be the language of the proceeding for the following main reasons: (a) The disputed domain names reproduce Complainant's FACEBOOK trademark or variations thereof, with the addition of the English descriptive terms "location" and "settlement" or variations thereof. (b) The disputed domain names have been registered under the ".com" gTLD. (c) It would be disproportionate to require Complainant not to submit the present Complaint in English. Complainant is a U.S. corporation, whose main operating language is English. To require Complainant to translate the Complaint and supporting annexes into Chinese would cause Complainant to incur substantial additional costs, and would cause unwarranted delay, contrary to the aim of the Policy of providing time- and cost-efficient means of addressing instances of abusive domain name registration and use. Respondent did not make any submission with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding. Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593). The language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in its abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004). Section 4.5.1 of the WIPO Overview 3.0 further states: "Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case. Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant's mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the page 5 complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement." (See also L'Oreal S.A. v. MUNHYUNJA, WIPO Case No. D2003-0585). On the record, Respondent is located in China and is thus presumably not a native English speaker. However, considering the following, the Panel has decided that English should be the language of the proceeding: (a) all the disputed domain names include Latin characters and English words, rather than Chinese scripts; (b) all the disputed domain names resolve to websites in English, rather than in Chinese; (c) the Center has notified Respondent of the proceeding in both Chinese and English but Respondent did not comment on the language of the proceeding; and (d) the Center informed the Parties, in English and Chinese, that it would accept a Response in either English or Chinese, but none was filed. Accordingly, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.3. Substantive Issues Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain names should be cancelled or transferred: (i) the disputed domain names registered by Respondent are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names have been registered and are being used in bad faith. On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a)-(c)), the Panel concludes as follows: A. Identical or Confusingly Similar The Panel finds that Complainant has rights in the FACEBOOK mark acquired through registration and use. The FACEBOOK marks have been registered in the U.S. since 2006, and registered in China since 2009. In relation to the disputed domain names , , , , , , , , , , , , and , the Panel finds that they comprise the FACEBOOK mark in its entirety. They only differ from Complainant's trademark by the term "location settlement" or variations thereof (such as "lacation settlement", "locatin settlement", "location setlement", "location settelment", "location settement", "location settlements", "location settlment", "locations settlement", "locatio settlement", "locaton settlement", "locotion settlement", "loction settlement", or "www location settlement"), and the gTLD ".com". This does not compromise the recognizability of Complainant's mark within the disputed domain names, nor prevent a finding of confusing similarity between Complainant's registered trademark and the disputed domain names (Decathlon v. Zheng Jianmeng, WIPO Case No. D2019-0234). page 6 In relation to the disputed domain names, , , and , the Panel finds that the essential part of disputed domain names ("facebook") is a merely misspelling of Complainant's trademark FACEBOOK. Section 1.9 of the WIPO Overview 3.0 states: "A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. [.] This stems from the fact that the domain name contains sufficiently recognizable aspects of the relevant mark." As the essential part of these disputed domain names ("facebook") is a mere misspelling of Complainant's FACEBOOK mark and "location settlement" as a suffix, the Panel finds that the disputed domain names must be considered a prototypical example of typosquatting and it does not prevent a finding of confusing similarity between these disputed domain names and the FACEBOOK mark. Further, in relation to the gTLD suffix, WIPO Overview 3.0 further states: "The applicable Top-Level Domain ('TLD') in a domain name (e.g., '.com', '.club', '.nyc') is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test." (WIPO Overview 3.0, section 1.11.1.) The Panel, therefore, holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain names: (i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the disputed domain names or a name corresponding to the disputed domain names in connection with a bona fide offering of goods or services; or (ii) Respondent has been commonly known by the disputed domain names, even if Respondent has acquired no trademark or service mark rights; or (iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant's trademarks. The overall burden of proof on this element rests with the complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent to rebut complainant's contentions. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai, WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1, and cases cited therein). Complainant has rights in the FACEBOOK marks in the U.S. since 2006 and in China since 2009, which precede Respondent's registrations of all the disputed domain names (2022). According to the Complaint, Complainant operates, inter alia, Facebook, Instagram, Meta Quest (formerly Oculus) and WhatsApp. Complainant's focus is to bring the metaverse to life and to help people connect, find communities and grow businesses. Founded in 2004, Complainant, formerly known as "Facebook, Inc.", is the leading provider of online social networking services, and it had approximately 2.91 billion monthly active users and 1.93 billion daily active users on average worldwide (as of December 31, 2021). Complainant asserts that it has not authorized Respondent to use its FACEBOOK marks, and Respondent is not a licensee of Complainant. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names and thereby shifted the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455). page 7 Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names: (a) There has been no evidence adduced to show that Respondent is using the disputed domain names in connection with a bona fide offering of goods or services. Respondent has not provided evidence of legitimate use of the disputed domain name or reasons to justify the choice of the term "facebook" or a misspelled version of the term "facebook" in the disputed domain names. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the FACEBOOK marks or to apply for or use any domain names incorporating the FACEBOOK marks; (b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain names. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain names. Respondent registered the disputed domain names in 2022, long after the FACEBOOK marks became internationally known. The disputed domain names are confusingly similar to Complainant's FACEBOOK marks; (c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain names. The disputed domain names resolve to parking pages with PPC links. The Panel finds that Respondent has failed to produce any evidence to rebut Complainant's prima facie case. The Panel, therefore, holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain names in bad faith, namely: (i) circumstances indicating that Respondent has registered or acquired the disputed domain names primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the disputed domain name; or (ii) Respondent has registered the disputed domain names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) Respondent has registered the disputed domain names primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's websites or other online location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's websites or location or of a product or service on the websites or location. The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and used the disputed domain names in bad faith. page 8 (a) Registration in Bad Faith The Panel finds that Complainant has a widespread reputation in the FACEBOOK marks with regard to its products or services. Complainant has registered its FACEBOOK marks in the U.S. since 2006, and in China since 2009. As introduced above, Facebook is currently ranked as the 9th app by downloads for iOS phones worldwide. Currently inaccessible in mainland China where Respondent is based, Complainant's services are far from unknown to the Chinese public. Numerous Chinese press articles (notably including China's state media People's Daily) have reported on the international popularity of Complainant's services. Facebook has acquired a considerable reputation and goodwill throughout the world, including in China (Annex 11 to the Complaint). All the disputed domain names were registered (in 2022) after Complainant's registration of Facebook marks (since at least 2006). It is not conceivable that Respondent would not have had actual notice of Complainant's trademark rights at the time of the registration of the disputed domain names. Moreover, Respondent has chosen not to respond to Complainant's allegations. According to the UDRP decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, "the failure of Respondent to respond to the Complaint further supports an inference of bad faith". See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787. Thus, the Panel concludes that the disputed domain names were registered in bad faith. (b) Use in Bad Faith Respondent is using the website parking pages resolved by the disputed domain names to provide PPC links. All the associated parking pages display PPC links to various third-party goods and services. Thus, the Panel concludes that Respondent is using the confusingly similar disputed domain names with the intention to attract, for commercial gain, Internet users to Respondent's websites. Given the reputation of the FACEBOOK marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain names have a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the websites to which the disputed domain names resolve. In other words, Respondent has through the use of the confusingly similar disputed domain names created a likelihood of confusion with the FACEBOOK marks. The Panel, therefore, concludes that the disputed domain names were registered and are being used by Respondent in bad faith. Such use of the disputed domain names is also disruptive in relation to the interests of Complainant. In summary, Respondent, by choosing to register and use the disputed domain names, which are confusingly similar to the FACEBOOK mark, intended to ride on the goodwill of this trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain names and the conducts of Respondent as far as the websites to which the disputed domain names resolve are indicative of registration and use of the disputed domain names in bad faith. Moreover, the Panel notes that the evidence provided by Complainant shows that Respondent registered other domain names incorporating the trademarks of third parties. The Panel, therefore, holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. page 9 7. Decision For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names , , , , , , , , , , , , , , , , and be transferred to Complainant. /Yijun Tian/ Yijun Tian Sole Panelist Dated: May 22, 2023
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