Complainant is Linode, LLC of Absecon, New Jersey, United States of America, internally represented.
Respondent is Yang Chenghao of Xu Chang, He Nan, People’s Republic of China. 2. The Domain Name and Registrar
The disputed domain name ("the domain name") is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 28, 2010. On July 28 and August 3, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the domain name. On August 5, 2010, GoD, Inc. 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 27, 2010.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on September 13, 2010. 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 is a United States corporation based in New Jersey. It operates as an Internet service provider providing Linux virtual private server systems. It is the owner of the United States trademark registration No. 3816150, LINODE, dated July 8, 2008 claiming first use in June 2003. Complainant owns domain names comprising the word "Linode" and registered with “.com”, “.net”, and “.org” domain name denominators.
(b) The domain name was registered on July 20, 2010. No further information is available on the record regarding Respondent other than his address in Xu Chang, He Nan, China.
(c) On July 23, 2010 Complainant wrote to Respondent by email offering to purchase the domain name. Respondent replied that the asking price was USD 9,500.00. Complainant replied, quoting its United States trademark registration and offering USD 100.00. Respondent replied as follows:
"Hello,
Dot co is the country-code of Top Level Domain for the Republic of Colombia.
Do you have a trademark in Colombia? Since you own the trademark, why did you not register the domain in .co Global Sunrise Registration Period?
It's 26 April, 2010 18.00 GMT to 10 June, 2010 16.00 GMT.
Anyone owned the trademark can apply for their desired domain during Sunrise period.
But you don't. You don't submit your .CO landrush application either.
After Sunrise, any individual or organization from any country can register a .CO domain name. There are no restrictions according to the rules of the .co registry.
It's first come, first served basis. If you want to own this domain, purchase it.
The final price for this domain is 4500 USD.
Best regards
YANG Chenghao"
(d) The WhoIs record for the domain name on July 28, 2010 showed Respondent as registrant. However, on August 3, 2010 GoD, Inc. advised the Center that Respondent was not the registrant of the domain name and the inclusion of top-level domain has been registered by another person in August 2010. In response to a request for clarification from the Center on August 4, 2010, the registrar advised, on August 5, 2010, that "Registration has been reverted to July 28, 2010" and that the registrant is Respondent. 5. Parties’ Contentions A. Complainant
Complainant's contentions are reproduced in their entirety below:
"A. The domain name(s) [is/are] identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
(Policy, para. 4(a)(i), Rules, paras. 3(b)(viii), (b)(ix)(1))
Linode (company Internet site ) is an Internet service provider specializing in the provisioning of Linux virtual server (VPS) systems. Based in Absecon NJ, USA, the company has been in continuous operation for over seven years, and the "LINODE" trademark (the "Mark") has come to be recognized worldwide in association with VPS services. The Mark is registered with the United States Patent and Trademark Office (first use in commerce circa June of 2003, filing date July 8, 2008, registration number 3816150). Additional information concerning Linode's trademark registration may be found at: . Furthermore, the Mark is pending registration in the European Union.
B. The Respondent has no rights or legitimate interests in respect of the domain name[s];
Policy, para. 4(a)(ii), Rules, para. 3(b)(ix)(2)).
Registrant holds no rights to the use of Linode's name. Registrant is fraudulently using Linode's name in a commercial context.
C. The domain name[s] [was/were] registered and [is/are] being used in bad faith.
Policy, paras. 4(a)(iii), 4(b); Rules, para. 3(b)(ix)(3)).
Linode contacted the Registrant via email on July 23, 2010 to make an offer of purchase for the Domain Name. The Registrant replied that the Domain Name was available for the price of $9,500.00 USD. Linode replied to the offer of sale with an assertion that as the rightful trademark holder, Linode would pay $100.00 USD for the Domain Name. Registrant refused to sell the Domain Name for that price, instead offering $4,500.00 USD and essentially making claims to the effect that Linode's rights were of no substantive value with respect to such a transaction. Reference Exhibit A. Visitors who presently attempt to visit a website associated with the Domain Name receive a page containing advertisements for Internet hosting and associated services, which represents Linode's core business offerings. Reference Exhibit B."
Complainant's Exhibit A comprises the chain of e-mail correspondence referred to in paragraph 4(b) above. Complainant's Exhibit B comprises screen shots of pages from the website at the domain name with links to several third party websites including websites offering virtual private servers and other Internet services. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The domain name comprises the word "Linode" with the domain name denominator ".com". Complainant has a United States registration of LINODE in respect of Internet services including website hosting services for virtual private servers. Considering that domain name denominators such as ".com" are insufficient to avoid a finding of identity or confusing similarity of a domain name with a trademark, the Panel finds that the domain name is identical to a trademark or service mark in which Complainant has rights. B. Rights or Legitimate Interests
Complainant bears the burden of showing that each of the elements of paragraph 4(a) of the Policy is satisfied. It is recognized that upon a prima facie showing under paragraph 4(a)(ii) the burden reverts to Respondent – see for example Croatia Airlines d.d v. Modern Empire Internet Ltd,WIPO Case No. D2003-0455. Complainant's submission, as such, comprises no more than a bland assertion that "Registrant holds no rights to the use of Linode's name. Registrant is fraudulently using Linode's name in a commercial context".
Mere assertion is not enough to discharge Complainant's burden, however, in the Panel's view, Respondent's email of July 23, 2010 strongly suggests that when it registered the domain name, it did so knowing of Complainant's rights and reputation in the LINODE trademark and with the intention of profiting from it either by selling it to Complainant, which it tried to do, or using it as a portal site, which it has done. Absent rebuttal from Respondent the inevitable conclusion is that it is using the domain name to attract Internet users to its website by creating confusion with Complainant's mark and that it is doing so for commercial gain by generating pay-per-click royalties. Such use cannot be regarded as a bona fide offering of services by use of the domain name.
Complainant's mark is a distinctive, invented word, mark and there is no apparent reason why Respondent might legitimately wish to use it in the domain name. There is no evidence, or any apparent reason to suppose, that Respondent is commonly known by that name and the use of the domain name is neither legitimate nor noncommercial or fair. The Panel therefore accepts that despite the paucity of the Complaint per se there is a prima facie showing of absence of a right or legitimate interest in the domain name on the part of Respondent. Respondent has not attempted to rebut that showing and the Panel therefore finds that Respondent has no rights or legitimate interests in the domain name. C. Registered and Used in Bad Faith
As noted above, Respondent's email of July 23, 2010 indicates that it was aware of Complainant's rights when it registered the domain name and that it did so opportunistically. Its subsequent attempt to sell the domain name to Complaint for a substantial sum and its subsequent use to attract users to its per-per-click website indicate that its adoption and use of the domain name was to profit from the domain name in the circumstance set out in either or both of paragraphs 4(b)(i) and/or 4(b)(iv) of the Policy. A further indicator of bad faith on Respondent's behalf is its apparent attempt at "cyber flight" by transferring the domain name to another person after the filing of the Complaint. The Panel therefore finds that the domain name was registered and is being used in bad faith. 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 domain name be transferred to the Complainant.
Desmond J. Ryan AM
Sole Panelist
Dated: September 27, 2010
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