The Complainant is SurveyMonkey Inc. of Palo Alto, California, United States of America, represented by The GigaLawFirm, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.
The Respondent is Guanyong sun of Shenzheng, Guanzhou, China. 2. The Domain Name and Registrar
The disputed domain name is registered with CCI REG S.A. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2014. On June 19, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 23, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 24, 2014.
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”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 24, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 15, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 17, 2014.
On July 18, 2014, the Respondent sent an informal email communication to the Center.
The Center appointed George R.F. Souter as the sole panelist in this matter on July 30, 2014. 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.
After reviewing the case file the Panel noted that the Respondent Guanyong Sun claimed to have sold the domain name to a “Shen Zhijun”. The Panel issued a Panel Order on August 29, 2014, to the effect that “Shen Zhijun is given the opportunity to make any specific submissions it may have in reply to the Complainant’s contentions, or otherwise address in particular the issue of any rights or legitimate interests it may believe it has in the disputed domain name.” Shen Zhijun replied informally to this Order on August 31, 2014, but did not address any of the substantive issues in the case. 4. Factual Background
The Complainant, a company founded in 1999, is the world’s leading provider of web-based survey solutions, with more than 43 million surveys completed and 2.2 million survey responses daily. Details of extensive trademark registration internationally of its SURVEYMONKEY mark, including US Federal Registration No. 3945632, claiming use in commerce since May 21, 2000, have been supplied to the Panel.
The disputed domain name was registered on July 20, 2010. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its SURVEYMONKEY trademark, containing its trademark in its entirety, with the addition only of the ccTLD indicator, .
The Complainant claims that the Respondent has no rights or legitimate interests in the disputed domain name, in particular that the Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the SURVEYMONKEY Trademark in any manner. Further, upon information and belief, the Complainant alleges that the Respondent has never used, or made preparations to use, the disputed domain name or any name corresponding to the disputed domain name in connection with a bona fide offering of goods or services, thus the Respondent cannot establish rights or legitimate interests in the disputed domain name, pursuant to paragraph 4(c)(i) of the Policy.
The Complainant alleges that the disputed domain name was registered in bad faith. The Complainant further alleges that the disputed domain name is being used in bad faith, in connection with a website with a monetized parking page that contains links to companies offering services similar to those offered by Complainant B. Respondent
The Respondent did not formally reply to the Complainant’s contentions. On July 18, 2014, the Respondent sent an email communication to the Center, the content of which was “I have sold to other. Please contact the domain name owner”. The Panel issued a Panel Order (see above) on August 29, 2014, giving the apparent new owner an opportunity to participate in these proceedings, however the new owner’s reply made no attempt to address any of the substantive issues in this case. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant or be cancelled:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(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. A. Identical or Confusingly Similar
It is well-established in decisions under the UDRP that generic Top-Level Domain (“gTLD”) indicators (e.g. “.com”, “.info”, “.net”, “.org”) may be considered irrelevant in assessing confusing similarity between a trademark and a domain name. The Panel agrees with this view and considers that the logic of these decisions can be applied to the circumstances of the present case, where the country code Top-Level Domain (“ ccTLD”) is different only from the gTLD indicator by omission of the final letter ”m”. Accordingly, the Panel finds that the ccTLD is irrelevant in considering whether the disputed domain name is identical or confusingly similar to the Complainant’s SURVEYMONKEY trademark. The Panel considers that it is self-evident that the disputed domain name is identical or confusingly similar to the Complainant’s SURVEYMONKEY trademark, and finds that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
It is the predominant view of panels in previous UDRP decisions, with which the present Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. The Respondent did not take the opportunity of these proceedings to attempt to provide a justification of rights or legitimate interests in the disputed domain name. The Panel, therefore, accepts the Complainant’s contentions (above) under paragraph 4(a)(ii) of the Policy as establishing an un-rebutted prima facie case, and, accordingly, finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Panel is of the view that the finding that the Respondent has no rights or legitimate interests in the disputed domain name, may lead, in appropriate circumstances, to a finding that the disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which the disputed domain name contains the Complainant’s trademark SURVEYMONKEY in its entirety, with no additions, as making it appropriate for the Panel to find that the disputed domain name was registered in bad faith and the Panel so finds.
It is well-established in prior decisions under the UDRP, with which the Panel agrees, that the use of a website operated under a disputed domain name to offer goods or services competing with those of the complainant constitutes use of the disputed domain name in bad faith. The circumstances of the present case, in which the disputed domain name is used in in connection with a website with a monetized parking page that contains links to companies offering services similar to those offered by Complainant, are such, in the Panel’s view, as to constitute use of the disputed domain name in bad faith, and the Panel so finds. 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.
George R.F. Souter
Sole Panelist
Date: September 10, 2014
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