ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Barracuda Networks, Inc. v. 杨智超 (Yang Zhi Chao) Case No. D2023-4163 1. The Parties The Complainant is Barracuda Networks, Inc., United States of America ("United States"), represented by KXT LAW, LLP, United States. The Respondent is 杨智超 (Yang Zhi Chao), 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 was filed in English with the WIPO Arbitration and Mediation Center (the "Center") in English on October 6, 2023. On October 6, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 7, 2023, 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 (Registration Private, eName Technology Co., Ltd.) and contact information in the Complaint. The Center sent an email communication to the Complainant on October 10, 2023 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 amendment to the Complaint in English on the same day. On October 10, 2023, the Center informed the parties in Chinese and English that the language of the registration agreement for the disputed domain name is Chinese. On October 11, 2023, the Complainant submitted its request for English to be the language of the proceeding. The Respondent did not submit any comment on the language of the proceeding. The Center verified that the Complaint together with the amendment to 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"). page 2 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent in Chinese and English of the Complaint, and the proceeding commenced on October 18, 2023. In accordance with the Rules, paragraph 5, the due date for Response was November 7, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 15, 2023. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on November 23, 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 The Complainant is a company founded in the United States in 2003, and a provider of network security and data protection services under the trade marks BARRACUDA and BARRACUDA NETWORKS. The Complainant is the owner of United States registration No. 4,922,692 for the BARRACUDA NETWORKS trade mark (the "Trade Mark"), with a registration date of March 22, 2016. B. Respondent The Respondent is located in China. C. The Disputed Domain Name The disputed domain name was registered on August 26, 2023. D. Use of the Disputed Domain Name The disputed domain name is resolved to an English language parking page with sponsored links relating to network and data protection services (the "Website"). 5. Parties' Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. page 3 The Complaint was filed in English. The Complainant requested that the language of the proceeding be English for several reasons, including the fact that the Website is an English language content website, and the disputed domain name is an English language domain name - which demonstrates that the Respondent understands English; the Complainant has no familiarity with reading and writing in the Chinese language; and requiring a translator would unfairly prejudice the Complainant by adding unnecessary costs and delay. The Respondent did not make any submissions with respect to the language of the proceeding. In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties' ability to understand and use the proposed language, time and costs (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.5.1). Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Elements of the Policy A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Trade Mark and the disputed domain name. WIPO Overview 3.0, section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trade mark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1. The disputed domain name consists of a common, obvious, or intentional misspelling of the Trade Mark. WIPO Overview 3.0, section 1.9. Based on the available record, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. Having reviewed the available record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant's prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise. Based on the available record, the Panel finds the second element of the Policy has been established. page 4 C. Registered and Used in Bad Faith The Panel notes that, for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular, but without limitation, that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. In the present case, the Panel notes that the Respondent has registered and used the disputed domain name, for commercial gain, in respect of the Website, which contains sponsored links relating to the network security and data protection services of both the Complainant and its competitors. The evidence in the present case suggests that the Respondent has targeted the Complainant in registering and using the disputed domain name in an attempt to hijack Internet traffic that is intended for the Complainant; and that there cannot be any actual or contemplated good faith use of the disputed domain name by the Respondent. The Respondent has been involved in several UDRP proceedings, which demonstrates that the Respondent has engaged in a pattern of cybersquatting. In all the circumstances, the Panel finds that the requisite element of bad faith has been made out pursuant to paragraph 4(b)(iv) of the Policy. Based on the available record, the Panel finds that the Complainant has established the third element 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 be transferred to the Complainant. /Sebastian M.W. Hughes/ Sebastian M.W. Hughes Sole Panelist Date: December 7, 2023
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