The Complainants are StubHub Inc. (“StubHub”) and eBay Inc. (“eBay”) of San Jose, California, United States of America, represented by Pillsbury Winthrop Shaw Pittman LLP, United States of America.
The Respondents are Chen Sizhu (Respondent 1) c/o Dynadot Privacy and liwei li (Respondent 2) of San Mateo, California, United States of America, and Nanchong, Sichuan, China. Respondent 2, liwei li appearing pro se.
The disputed domain name <stubhome.com> is registered with HiChina Zhicheng Technology Ltd.
The disputed domain names <astubhub.com>, <bstubhub.com>, <btubhub.com>, <cstubhub.com>, <dstubhub.com>, <estubhub.com>, <fstubhub.com>, <tubhub.com>, <gstubhub.com>, <gtubhub.com>, <hstubhub.com>, <jstubhub.com>, <mstubhub.com>, <stubhub.com>, <schlubhub.com>, <scubhub.com>, <setubhub.com>, <sftubhub.com>, <sgtubhub.com>, <gubhub.com>, <shlubhub.com>, <siubhub.com>, <stabhub.com>, <staubhub.com>, <stbbhub.com>, <stfubhub.com>, <stgbhub.com>, <stgubhub.com>, <sthbhub.com>, <sthubhub.com>, <stjbhub.com>, <stjubhub.com>, <stlubhub.com>, <strbhub.com>, <stsubhub.com>, <sttbhub.com>, <stubaub.com>, <stubbuh.com>, <stubchub.com>, <stubdhub.com>, <stubghub.com>, <stubgub.com>, <stubhaub.com>, <stubhbub.com>, <stubheb.com>, <stubhhb.com>, <stubhjb.com>, <stubhnub.com>, <stubhua.com>, <stubhubc.com>, <stubhubg.com>, <stubhubh.com>, <stubhubi.com>, <stubhublcom.com>, <stubhubm.com>, <stubhubo.com>, <stubhubu.com>, <stubhubz.com>, <stubhub1.com>, <stubhub2.com>, <stubhub4.com>, <stubhub7.com>, <stubhub9.com>, <stubhuc.com>, <stubhudb.com>, <stubhuf.com>, <stubhugb.com>, <stubhug.com>, <stubhuhb.com>, <stubhujb.com>, <stubhuj.com>, <stubhuk.com>, <stubhuo.com>, <stubhux.com>, <tubhuy.com>, <stubhuz.com>, <stubhu7b.com>, <stubhu7.com>, <stubhu8b.com>, <stubhyb.com>, <stubh7b.com>, <stubh7ub.com>, <stubh8b.com>, <stubh8ub.com>, <stublub.com>, <stubvhub.com>, <stubwub.com>, <stubyub.com>, <stugbhub.com>, <stuhbhub.com>, <stujbhub.com>, <stushub.com>, <stutbhub.com>, <stuthub.com>, <stuzbhub.com>, <stu7bhub.com>, <stu8bhub.com>, <stvbhub.com>, <styubhub.com>, <stzubhub.com>, <st5ubhub.com>, <st6ubhub.com>, <st7bhub.com>, <st7ubhub.com>, <st8bhub.com>, <subthub.com>, <swtubhub.com>, <sxtubhub.com>, <sztubhub.com>, <szubhub.com>, <s5tubhub.com>, <s5ubhub.com>, <s6tubhub.com>, <s6ubhub.com>, <ticketsebay.com>, <tsubhub.com>, <wwwlstubhub.com>, <wwwwstubhub.com>, <xstubhub.com>, <ystubhub.com>, <zstubhub.com>, <5tubhub.com> are registered with Dynadot, LLC.
HiChina Zhicheng Technology Ltd and Dynadot, LLC are collectively referred as the “Registrar”. The disputed domain names are collective referred to as the “Domain Names”.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 22, 2013. On February 22, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On February 27 and 28, 2013, Dynadot, LLC transmitted by email to the Center its verification response confirming that Respondent 1 is listed as the registrant and providing the contact details. On February 25, 2013, HiChina Zhicheng Technology Ltd disclosing registrant and contact information for the Domain Name <stubhome.com> which differed from the named Respondent and contact information in the Complaint.
The Center sent an email communication to the Complainant on February 28, 2013 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 on March 7, 2013.
The Center received email communications from a Respondent (it was not clear which) on March 6, 2013.
Respondent 2 replied on March 10, 2013 regarding the Amendment to Complaint and the request for consolidation of the proceedings. In response to a notification by the Center regarding the Amendment to Complaint, the Complainant filed an email on March 18, 2013 to add to its arguments on consolidation of the proceedings.
On March 8, 2013, the Center transmitted an email to the parties in both Chinese and English language regarding the language of proceedings. On March 10, 2013, Respondent 2 requested that Chinese be the language of proceedings. On March 11, 2013, the Complainant confirmed its request that English be the language of proceedings.
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 Respondents of the Complaint, and the proceedings commenced on March 26, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 15, 2013. The Response from Respondent 2 regarding <stubhome.com> was filed with the Center on April 14, 2013.
The Center appointed Karen Fong, Michael A.R. Bernasconi and Yong Li as panelists in this matter on May 15, 2013. The Panel finds that it was properly constituted. Each member of 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.
StubHub operates the world’s largest online ticket marketplace, providing services of buyers and sellers of tickets for sports, concerts, theater and other live entertainment events. It commenced providing its services via its website at “www.stubhub.com” (the “StubHub Website”) under the trade mark STUBHUB some time in January 2001. Users who have tickets to live entertainment events can list those tickets for sale on the StubHub Website. Users who wish to purchase tickets to live entertainment events can visit the StubHub Website to search for, select from, and purchase tickets available tickets to any event. The purchaser pays for the tickets online and tickets are shipped by courier, or delivered by email or instant download, or are picked up on the day of the event at a last minute services office. All transactions are processed and delivered by StubHub, and backed by the company’s FanProtect Guarantee.
StubHub owns the following trade mark registrations for STUBHUB:
Mark | Jurisdiction | Registration No. | Registration Date |
|
STUBHUB |
U.S. |
2558703 |
4/09/2002 |
|
STUB HUB |
U.S. |
2870113 |
8/03/2004 |
|
STUBHUB! (stylized)
|
U.S. |
3262511 |
7/10/2007 |
|
STUBHUB |
Canada |
TMA637168 |
4/12/2005 |
|
STUBHUB |
European Community |
004998324 |
7/25/2007 |
|
STUBHUB! (stylized)
|
European Community |
004998316 |
9/25/2007 |
StubHub has also established common law trade mark rights in the STUBHUB trade mark through extensive use and promotion since 2001. In 2009, when the earliest Domain Names were registered, StubHub had over 11 million registered users. StubHub currently has more than 22 million registered users. In 2012, the StubHub Website had more than 13 million unique visitors per month, for a total of more than 150 million unique visitors during the year. In addition, StubHub’s Facebook page has over 250,000 “likes” and more than 20,000 people are following StubHub on Twitter.
During the five year period from 2004-2008 (immediately preceding the registration of the earliest Domain
Names in 2009) more than 20 million tickets were sold on the StubHub Website, for a total dollar volume of more than USD 2 billion. In 2011 alone, nearly 7 million tickets were sold on the StubHub Website, for a total dollar volume of more than USD 1.5 billion.
StubHub invests tens of millions of dollars annually to advertise and promote its services under the STUBHUB mark, advertising through a variety of media, including print, online, billboards, and social media to name a few. In 2011, StubHub’s advertising and promotional expenditures totaled nearly USD 70 million.
eBay operates the world’s largest online marketplace, where practically anyone can buy and sell practically anything. The goods offered on the eBay website run the gamut from antiques and art, to toys, clothing, consumer electronics, sporting goods and nearly everything in between, including tickets to sporting events, theater productions and concerts.
eBay owns numerous trade mark registrations for EBAY (word and/or logo) in more than 50 jurisdictions around the world, including the U.S., the European Community and China.
In addition, eBay has established common law trade mark rights through its use and promotion of the EBAY trade mark since at least as early as September 1995 when it began providing an online marketplace, via its flagship website at “www.ebay.com” (the “eBay Website”), for users to buy, sell, bid on, and /or trade goods and services.
eBay currently has over 100 million active registered users around the world. The company hosts an average of almost 14 million listings of items for sale or bid on its website in 50,000 categories. The eBay Website generates 1 billion page views per day. In 2010, these page views generated over USD 2,000 in transactions per second, amounting to a grand total of over USD 60 billion in goods sold on eBay.
eBay has invested substantial resources to advertising and promoting its services under the EBAY trade mark. For the four year period from 2006 to 2009, eBay’s worldwide advertising and promotion expenditures totaled nearly USD 3 billion. The success of eBay’s branding has been the subject of numerous awards as recognized by the media worldwide. In 2010, just shortly after Domain Name No. 123 <ticketsebay.com> (see Schedule A) was registered, the EBAY Mark ranked 43rd in the Interbrand survey of the 100 Best Global Brands with an estimated value of USD 8.4 billion. In the same year, eBay also was honored with a ranking of 6th most valuable brand in the Retail Category and 76th overall in the Brandz’s Gobal Top 100 Brand Report for 2010 with a value of USD 9.3 billion.
The EBAY trade mark was found to be famous by both the U.S. Court of Appeals for the Ninth Circui (in litigation over the domain name <perfumebay.com>) and the U.S. District Court for the Northern District of New York (in litigation over the domain name <ebaytoo.com>). In addition, numerous UDRP panels have determined that the EBAY mark is famous. See, eBay Inc. v. Aragrafi Multimedya Hizmetteri, WIPO Case No. D2008-1935 (transferring <ebaycatwalk.com> to eBay); eBay Inc. v. RLE enterprises, WIPO Case No. D2008-1068 (transferring <ebayip.com> and <ebayofip.com> to eBay); eBay Inc. v David Sach, WIPO Case No. D2009-1083 (transferring <ebay-cz.com> to eBay).
When the Complaint was filed, Respondent 1 Chen Sizhu c/o Dynadot Privacy was the registrant for the Domain Names. The 123 Domain Names and the dates of registration and expiry are listed at Schedule A.
Domain Name No. 122, <stubhome.com> resolves to an online ticket marketplace website (the “StubHome Website”) which provides the same service as the Stubhub Website. Users can search for and purchase tickets to sporting events, concerts, theater performances and other live entertainment events. In addition, users can post their own tickets for sale to third parties on the site. The layout of the StubHome Website, including the colours are identical or very similar to the StubHub Website. At the time of the filing of the Complaint, Domain Names 1-121 resolved to the StubHome Website.
Domain Name No 123 <ticketsebay.com> resolved to the website “www.zuo.ai/domain.html”. In or about July 25, 2010 the website contained the following English text: “This domain name is for sale! Email: admin@mmxt.com.”
After the filing of the Complaint on February 21, 2013, Domain Name No. 122 was transferred from Respondent 1 to Respondent 2 on or about February 24, 2013.
The Complainant contends that Domain Names Nos. 1-122 are identical or confusingly similar to the STUBHUB trade mark whilst Domain Name No. 123 is identical or confusingly similar to the EBAY trade mark, the Respondents have no rights or legitimate interests with respect to the Domain Names, and that the Domain Names were registered and being used in bad faith. The Complainant requests transfer of the Domain Names, all of which it believes are related and under management and common control of a single person or entity.
The basis of its belief that the registrants are related and under management and common control of a single person or entity are as follows:
1. Respondent 1 and Respondent 2 are alter egos and both names refer to the same individual who own all 123 of the Domain Names under one or more fictitious names. The historical records for the registrant and contact details of Domain Name No. 122 since February 2010 reveal that in February 2, 2010, the registrant was li shuang yu with an address in Chengdu, China and with email contact, kevin6886@gmail.com. On November 27, 2010, the registrant was li xiaofei with a different Chengdu address whilst the email contact remained the same. On January 19, 2011, the registrant was Respondent 1 with another Chengdu address but the same email contact. On August 3, 2011, the Domain Name was still in the name of Respondent 1 but the contact details were changed to Dynadot Privacy based in the USA. The registrant details were the same on February 21, 2013, one day before the Complaint was filed. On February 24, 2013, the Domain Name was in the name of Respondent 2 with the email contact web@callticket.com. The domain name <callticket.com> is owned by Respondent 1.
2. li shuang yu is a known alias for a cybersquatter with a pattern of registering typo-variations of well- known brands under various real and/or fictitious names, including Kevin Nelson and Respondent 1 and with an email address, kevin6886@gmail.com (Barry’s Ticket Service, Inc. v Li Shuang Yu, WIPO Case No. DCO2010-0004 and Avid Dating Life, Inc v WhoisPrivacyService/chen sizhu c/o/ Dynador Privacy, WIPO Case No. D2012-1265).
3. In Avid Dating Life, Inc v WhoisPrivacyService/chen sizhu c/o/ Dynador Privacy, supra, the complainant detailed how Respondent 1 signed up with the Complainant’s affiliate programme using the alias, Kevin Nelson, then masked the traffic coming from his typo domains, misleading the complainant that the traffic was coming from the website “www.gameue.com”. The registrant of <gameue.com> is also Respondent 1. On February 23, 2013, the same day that Domain Name No 123 was transferred from Respondent 1 to Respondent 2, the Complainant’s counsel received an email from admin@gameue.com on behalf of investors@investors8.com in relation to the proceedings. The domain name <investors8.com> is also owned by Respondent 1.
4. The above shows that the individual behind all these aliases and email addresses, li shuang yu, Respondent 1, Respondent 2, kevin6886@gmail.com, admin@gameue.com, investors@investors8.com, web@callticket.com is one and the same person. This person also received copies of the Complainant’s emails submitting the complaint to Center which was sent to the Respondent’s then current email address privacy@dynadot.com because he was aware of the proceedings when he sent the email to the Complainant’s counsel on February 23, 2013.
5. Notwithstanding the change of ownership of Domain Name No 122, there has been no visible change to the StubHome Website.
6. The website “www.wetickets.com” which is owned by Respondent 1, resolves to the StubHome Website and has done so since at least February 7, 2011.
7. The domain name <waptickets.com> which is owned by Respondent 1 resolves to the StubHome Website and has done so since January 9, 2013.
8. The domain name <callticket.com> which is owned by Respondent 1 resolves to a website which is almost identical to the StubHome Website in layout, design and function except the banner name CallTicket is displayed in place of StubHome but in exactly the same font and colours.
9. The domain name <stubsmaster.com> which is owned by Respondent 1 resolves to a website which is almost identical to the StubHome Website in layout, design and function except the banner name StubsMaster is displayed in place of StubHome but in exactly the same font and colours.
The Complainant also submits that the transfer of Domain Name No 122 by Respondent 1 to Respondent 2 after the submission of the Complaint is a violation of the Policy and constitutes cyberflight. The transfer of Domain Name No 122 to a registrar with a Chinese language registration agreement is also a violation of the Policy and amounts to cyberflight. This obvious attempt to avoid or delay proceedings is an indication of the Respondents’ bad faith.
In the circumstances, the language of the proceedings should remain English as at the time the Complaint was filed the registration agreement for all 123 Domain Names was in English. In any event, all the Domain Names as well as the entire contents of the StubHome Website is in English demonstrating that the Respondent is familiar with and conducts business in English.
Only Respondent 2 has filed a Response. Respondent 1 did not file a response to the Complainant’s contentions.
Respondent 2 contends that he is the registrant for only Domain Name No. 122 and the contact information provided in the WhoIs entry has no relationship with the registrant of the other Domain Names. He challenges the accuracy of the historical WhoIs information provided by domaintools.com which the Complainant relies on. As such the Complainant’s assertions that Respondent 1 and Respondent 2 are the same person are without basis.
Respondent 2 also contends that the Complainant has not provided any evidence that it owns the STUB trade mark which is a generic term which many other parties have used prior to the Complainant’s commencement of its business under the STUBHUB trade mark. As such, Respondent 2 has not violated any trade mark rights and should be allowed to continue using Domain Name 122.
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove each of the following, namely that:
(i) The Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainants have rights; and
(ii) The Respondents have no rights or legitimate interests in respect of the Domain Names; and
(iii) The Domain Names were registered and are being used in bad faith.
Paragraph 12 of the Rules allows a panel in its discretion to request supplemental filings from either party, and although the Rules do not provide expressly for unsolicited submissions, under paragraph 10(a) the Panel enjoys a broad power to conduct the administrative proceeding in the manner it considers appropriate under the Policy and Rules, provided the parties are treated fairly and the proceeding is conducted expeditiously.
A supplemental filing naturally has the potential to delay and complicate proceedings. Consequently, whether it is appropriate to admit an unsolicited supplemental filing will depend inter alia on its relevance to the issues in the case, whether the Panel considers the content of the submission essential to reaching a fair decision on the facts, and whether the submission could have been made earlier and, if so, why it was not.
In this case, in addition to the Complaint, Amendment to the Complaint and the Response, prior to the filing of the Response both the Complainant and Respondent 2 have filed emails (March 10 and 18, 2013) in connection with the Amendment to the Complaint. As the issues raised by the Respondent could not have been reasonably anticipated by the Complainant, the Panel will allow both filings especially as they were filed before the filing of the Response. Neither will suffer any prejudice and procedural efficiency will be better served, by the Panel proceeding to a decision based on the materials now before it.
Paragraph 5(f) of the Policy allows a panel to consolidate multiple disputes between parties at its sole discretion and paragraph 10(e) of the Rules empowers a panel to consolidate multiple domain name disputes in accordance with the Policy and Rules. Neither the Policy nor the Rules expressly provide for the consolidation of multiple respondents in a single administrative proceeding. In fact, paragraph 3(c) of the Rules provides that a complaint may relate to more than one domain name provided that the domain names are registered by the same domain name holder. The panel in Speedo Holdings BV v Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons, WIPO Case No. 2010-0281 reviewed the relevant UDRP decisions in relation to consolidation in multiple respondent’s cases and extracted the following general principles:
1. Consolidation of multiples registrants as respondents in a single administrative proceeding may in certain circumstances be appropriate under paragraphs 3(c) or 10(e) of the Rules provided the complainant can demonstrate that the disputed domain names or the websites to which they resolve are subject to common control, and the panel having regard to all of the relevant circumstances, determines that consolidation would be procedurally efficient and fair and equitable to all parties.
2. The administrative provider should act as a preliminary gatekeeper in such cases by determining whether or not such complaints fulfill the requisite criteria. Once a case is admitted on a prima facie basis, the respondent has the opportunity to make its submissions on the validity of the consolidation together with its substantive arguments. In the event that the panel makes a finding that the complaint has not satisfied the requisite criteria, the complainant is not precluded from filing the complaint against the individual named respondents.
The Complainants’ submissions and supporting evidence summarized in paragraph 5A above demonstrates that prima facie the Domain Names are subject to common control. The Respondent has failed to refute this in his submissions and supporting evidence.
Accordingly, applying the principles to the facts in this case, the Panel finds that the Complainant has established more likely than not that the Domain Names are subject to the common ownership or control of either Respondent 1 or Respondent 2. The Panel finds such common control to justify consolidation of the Complainant’s claims against the registrants of the Domain Names in this proceeding. The Panel further concludes in the circumstances of this case that consolidation would be fair and equitable to all parties and procedurally efficient, and therefore will allow the consolidation as requested by the Complainant pursuant to paragraph 10(e) of the Rules.
The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the 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 proceedings. According to the information received from both the registrars, the language of the registration agreement for Domain Names Nos 1-121 and 123 is English whilst Domain Name No 122 is Chinese.
Paragraph 8 of the Policy prohibits, inter alia, under paragraph (a) transfer of the domain name registration to another holder and under paragraph (b) transfer of the disputed domain name registration to another registrar during a pending administrative proceeding.
There is no definition of what is meant by “pending” in the Policy. Many UDRP panels have decided that administrative proceedings begin to be “pending” from the point of initiation as described under paragraph 3(a) of the Rules and is certainly kept pending at the time of commencement of proceedings as described under paragraph 4(c) of the Rules and remain so until the conclusion of the proceedings (Patti Lupone v. XC2/Moniker Online Services LLC, WIPO Case No. D2008-0450 and LPG Systems v. Jerry/Mr Jeff Yan, WIPO Case No. D2010-0387.
In the circumstances, the transfer of Domain Name No. 122 after the submission of the Complaint by the Complainant to the Center on February 22, 2013 is found to be in violation of both paragraphs 8(a) and 8(b) of the Policy and to constitute cyberflight. Canwest Mediaworks Publications Inc. v. Laksh Internet Solutions Private Limited/SA c/o FP, WIPO Case No. D2008-0687. That being the case, English should remain the language of the proceedings. In any event, the StubHome Website is entirely in English. The events and concerts which are featured appear to be all taking place in the U.S. and the customers will therefore be likely to be English speakers. Respondent 2 would have been conducting his business in the English language. The Panel is satisfied that the Respondent 2 is familiar with the English language. Respondent 2 has not convinced the Panel that this is not the case. The Complainant may be unduly disadvantaged by having to conduct the proceedings in Chinese. The Panel notes that all of the communications from the Center to the parties were transmitted in both Chinese and English. Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding.
The Panel is satisfied that the Complainants have established that they have rights to the trade mark STUBHUB and EBAY respectively, both of which are well-known trade marks.
The Panel rejects the Respondent’s unsubstantiated argument that STUB is a generic term that all parties are free to use.
The Panel finds that Domain Names No 1-122 are confusingly similar to the STUBHUB trade mark and Domain Name No. 123 is confusingly similar to the EBAY trade mark for the purposes of the first requirement of paragraph 4(a) of the Policy. Domain Names No. 1- 121 consist of typographical misspellings of the STUBHUB trade mark by the addition of one letter or numeral (e.g., <astubhub.com>, <stubhub4.com>); the substitution of one letter or number (e.g.<gtubhub.com>, <st8bhub.com>) or the re-arranging or addition of several letters (e.g. <tsubhub.com>, <stubbuh.com>). The Respondents are thus clearly engaging in “typosquatting”, a practice that has been condemned and been found to be confusingly similar to the marks which they mimic (See, e.g., Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc., WIPO Case No. D2000-0587).
Domain Name No. 122, <stubhome.com> is confusingly similar to the STUBHUB trade mark as the marks are nearly identical in sound, appearance and meaning. The Complainant has also produced evidence of actual confusion in the form of a recorded telephone call and transcript between a customer service representative of the Complainant and a StubHub account holder who had bought tickets for a Yankee football game for USD 700 from what she thought was the StubHub Website only to find that she had in fact bought them from the StubHome Website. From her comments, “Is StubHub … Let me ask you a question. Is StubHome the same as StubHub?” and “No, I go into StubHome … no, I go into StubHub.com because I have a StubHub account”, it is clear that the customer was confused because of the similarity between the names.
With respect to Domain Name No 123, <ticketsebay.com>, the Complainant’s registered trade mark EBAY is the dominant portion of the Domain Name. The addition of the descriptive word “tickets” before the word “ebay” does nothing to minimise the risk of confusion.
For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy it is permissible for the Panel to ignore the generic domain suffix “.com”.
The Panel finds that the Domain Names are identical or confusingly similar to trade marks in which the Complainants have rights. The first requirement of paragraph 4(a) of the Policy has therefore been met.
The Respondents are not authorized to use the STUBHUB and EBAY trade marks or any misspellings of the STUBHUB trade marks. They are neither commonly known by the names “stubhub”, “ebay” or any of the misspellings of Domain Name Nos.1-121. Minor misspellings or predictable mistypings do not create a new or different mark in which a respondent has legitimate rights (see Playboy Enterprises International Inc. v. SAND WebNames – For Sale, WIPO Case No. D2001-0094).
Both trade marks in question are well-known trade marks. Domain Names Nos. 1-122 incorporate the STUBHUB trade mark whilst Domain Name No. 123 incorporates the EBAY trade mark. It is clear that the Respondents have chosen the Domain Names deliberately to create an impression of association with the Complainants. Rights or legitimate interests cannot be created in such circumstances (See Drexel University v. David Brouda, WIPO Case No. D2001-0067).
Domain Name No. 122 <stubhome.com> is being used to operate an online ticket marketplace that is directly competitive to the Complainant’s StubHub Website. Whether such use gives rise to legitimate interests in the Domain Name depends on whether such use amounts to a bona fide offering of goods or services. The Respondents are deliberately using a confusingly similar Domain Name for a website which imitates the layout and colour scheme of the StubHub Website. Further all 121 typosquatting domain names are pointing to the StubHome Website. Domain Name No. 122 <stubhome.com> intentionally diverts traffic from the Complainant’s StubHub Website and mistakenly and confusingly suggests an association with the Complainant and its STUBHUB Marks. The Respondent’s use of Domain Names Nos. 1-122 for this purpose is not bona fide use and hence does not create any rights or legitimate interests.
Further there can be no rights or legitimate interests arising from a competitor who incorporates a famous trade mark in its domain name in a manner confusing or diverting [to] Internet users. (See Volvo Trademark Holding AB v. e-motordealer Ltd., WIPO Case No. D2002-0036).
The Respondents have not provided any submissions to disprove the above and the Panel is unable to conceive of any basis upon which the Respondents could sensibly be said to have any rights or legitimate interests in respect of the Domain Names.
In the circumstances, the Panel finds that the Respondents have no rights or legitimate interests in respect of the Domain Names.
To succeed under the Policy, the Complainants must show that the Domain Names have been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondents must have been aware of the Complainants’ STUBHUB and EBAY trade marks when they registered the Domain Names. The fact that the Domain Names Nos. 1- 122 consist of misspellings of the Complainant’s well-known STUBHUB trade mark and that Domain Name No. 123 incorporates the Complainant’s well-known EBAY trade mark in its entirety is clear evidence that all the Domain Names were registered in bad faith. Further the fact that the StubHome Website was created to imitate the StubHub Website shows clear prior knowledge of the STUBHUB trade mark. Domain Names
Nos. 1-122 were registered with the Complainant StubHub specifically in mind and to intentionally attempted to attract, for commercial gain, Internet users to its StubHome Website by creating a likelihood of confusion with the STUBHUB trade mark as to source, sponsorship, affiliation or endorsement.
As stated above, the StubHome Website was created to imitate the StubHub Website. The Complainants produced evidence of actual confusion which was caused by such mimicry. The following statement is good evidence that the Respondents’ intention when using Domain Names Nos. 1-121 was to attract for commercial gain by confusing and misleading Internet users into believing that the StubHome Website was either the Complainant’s StubHub Website or one which was sold on them were authorised or endorsed by the Complainant StubHub: “Who the hell is StubHome?”, “…..No! It brings me to StubHome and it looks like your freaking web site” and “I would check into that because they have it set up just like yours and obviously when I typed in StubHub that’s what came up, too. And I accidentally clicked on the wrong one.”
The finding of cyberflight as stated above is also clear evidence that the registration and use of the Domain Names are in bad faith.
In addition, the Respondents’ bad faith is indicated by the prior history of bad faith registration of domain names incorporating third party trademarks. (e.g. Alienware Corporation v. Chen Sizhu c/o Dynadot Privacy, WIPO Case No. DCO2011-0056). The Respondent owns nearly 1,000 domains, including hundreds of typosquatting domains that correspond to famous third party trade marks including the following domain names which correspond to the famous TICKETMASTER, AMAZON, SCANDIC HOTELS, BING and GROUPON marks: <0ticketmaster.com>, <ficketmaster.com>, <iicketmaster.com>, < aamazonsupply.com>, <amaznosupply.com>, <smazonsupply.com>, <scaandichotels.com>, <scandchotels.com>, <scanddichotels.com>, <bingdocs.com>, <bingtranslate.com>, <binglcom.com>, <wgroupon.com>, <groupdon.com>, and <groupopn.com>. As the UDRP panel said in National Association of Professional Baseball Leagues, Inc. d/b/a/ Major League Baseball v. John Zuccarini, WIPO Case No. D2002-1011, “Typosquatting is inherently parasitic and of itself evidence of bad faith”.
The above is clearly bad faith under paragraph 4(b) of the Policy and the Panel concludes that the Respondents’ registration and use of the Domain Names are in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names, <stubhome.com>, <astubhub.com>, <bstubhub.com>, <btubhub.com>, <cstubhub.com>, <dstubhub.com>, <estubhub.com>, <fstubhub.com>, <tubhub.com>, <gstubhub.com>, <gtubhub.com>, <hstubhub.com>, <jstubhub.com>, <mstubhub.com>, <stubhub.com>, <schlubhub.com>, <scubhub.com>, <setubhub.com>, <sftubhub.com>, <sgtubhub.com>, <gubhub.com>, <shlubhub.com>, <siubhub.com>, <stabhub.com>, <staubhub.com>, <stbbhub.com>, <stfubhub.com>, <stgbhub.com>, <stgubhub.com>, <sthbhub.com>, <sthubhub.com>, <stjbhub.com>, <stjubhub.com>, <stlubhub.com>, <strbhub.com>, <stsubhub.com>, <sttbhub.com>, <stubaub.com>, <stubbuh.com>, <stubchub.com>, <stubdhub.com>, <stubghub.com>, <stubgub.com>, <stubhaub.com>, <stubhbub.com>, <stubheb.com>, <stubhhb.com>, <stubhjb.com>, <stubhnub.com>, <stubhua.com>, <stubhubc.com>, <stubhubg.com>, <stubhubh.com>, <stubhubi.com>, <stubhublcom.com>, <stubhubm.com>, <stubhubo.com>, <stubhubu.com>, <stubhubz.com>, <stubhub1.com>, <stubhub2.com>, <stubhub4.com>, <stubhub7.com>, <stubhub9.com>, <stubhuc.com>, <stubhudb.com>, <stubhuf.com>, <stubhugb.com>, <stubhug.com>, <stubhuhb.com>, <stubhujb.com>, <stubhuj.com>, <stubhuk.com>, <stubhuo.com>, <stubhux.com>, <tubhuy.com>, <stubhuz.com>, <stubhu7b.com>, <stubhu7.com>, <stubhu8b.com>, <stubhyb.com>, <stubh7b.com>, <stubh7ub.com>, <stubh8b.com>, <stubh8ub.com>, <stublub.com>, <stubvhub.com>, <stubwub.com>, <stubyub.com>, <stugbhub.com>, <stuhbhub.com>, <stujbhub.com>, <stushub.com>, <stutbhub.com>, <stuthub.com>, <stuzbhub.com>, <stu7bhub.com>, <stu8bhub.com>, <stvbhub.com>, <styubhub.com>, <stzubhub.com>, <st5ubhub.com>, <st6ubhub.com>, <st7bhub.com>, <st7ubhub.com>, <st8bhub.com>, <subthub.com>, <swtubhub.com>, <sxtubhub.com>, <sztubhub.com>, <szubhub.com>, <s5tubhub.com>, <s5ubhub.com>, <s6tubhub.com>, <s6ubhub.com>, <ticketsebay.com>, <tsubhub.com>, <wwwlstubhub.com>, <wwwwstubhub.com>, <xstubhub.com>, <ystubhub.com>, <zstubhub.com>, <5tubhub.com> be transferred to the Complainants.
Karen Fong
Presiding Panelist
Michael A.R. Bernasconi
Panelist
Yong Li
Panelist
Date: 6 June 2013
Domain Name | Registration Date | Expiry Date | |
|
1. |
astubhub.com |
8/7/2009 |
8/7/2013 |
|
2. |
5tubhub.com |
7/10/2012 |
7/10/2013 |
|
3. |
bstubhub.com |
6/6/2009 |
6/6/2013 |
|
4. |
btubhub.com |
6/6/2009 |
6/6/2013 |
|
5. |
cstubhub.com |
6/1/2009 |
6/1/2015 |
|
6. |
dstubhub.com |
8/26/2009 |
8/26/2013 |
|
7. |
estubhub.com |
9/27/2012 |
9/27/2014 |
|
8. |
fstubhub.com |
6/6/2009 |
6/6/2013 |
|
9. |
ftubhub.com |
6/6/2009 |
6/6/2013 |
|
10. |
gstubhub.com |
6/1/2009 |
6/6/2013 |
|
11. |
gtubhub.com |
6/6/2009 |
6/6/2013 |
|
12. |
hstubhub.com |
6/1/2009 |
6/1/2013 |
|
13. |
jstubhub.com |
6/4/2009 |
6/4/2013 |
|
14. |
mstubhub.com |
6/1/2009 |
6/1/2013 |
|
15. |
nstubhub.com |
6/6/2009 |
6/6/2013 |
|
16. |
s5tubhub.com |
9/27/2012 |
9/27/2013 |
|
17. |
s5ubhub.com |
5/22/2009 |
5/22/2013 |
|
18. |
s6tubhub.com |
9/27/2012 |
9/27/2013 |
|
19. |
s6ubhub.com |
5/22/2009 |
5/22/2013 |
|
20. |
schlubhub.com |
9/27/2012 |
9/27/2013 |
|
21. |
scubhub.com |
2/17/2012 |
2/17/2016 |
|
22. |
setubhub.com |
9/27/2012 |
9/27/2013 |
|
23. |
sftubhub.com |
9/27/2012 |
9/27/2013 |
|
24. |
sgtubhub.com |
9/27/2012 |
9/27/2013 |
|
25. |
sgubhub.com |
8/8/2012 |
8/8/2013 |
|
26. |
shlubhub.com |
9/27/2012 |
9/27/2013 |
|
27. |
siubhub.com |
6/4/2009 |
6/4/2013 |
|
28. |
st5ubhub.com |
9/27/2012 |
9/27/2013 |
|
29 |
st6ubhub.com |
9/27/2012 |
9/27/2013 |
|
30. |
st7bhub.com |
5/22/2009 |
5/22/2013 |
|
31. |
st7ubhub.com |
9/27/2012 |
9/27/2013 |
|
32. |
st8bhub.com |
5/22/2009 |
5/22/2013 |
|
33. |
stabhub.com |
5/11/2011 |
5/11/2013 |
|
34. |
staubhub.com |
9/1/2009 |
9/1/2013 |
|
35. |
stbbhub.com |
11/11/2010 |
11/11/2013 |
|
36. |
stfubhub.com |
9/27/2012 |
9/27/2013 |
|
37. |
stgbhub.com |
11/11/2010 |
11/11/2013 |
|
38. |
stgubhub.com |
9/27/2012 |
9/27/2013 |
|
39. |
sthbhub.com |
5/23/2009 |
5/23/2013 |
|
40. |
sthubhub.com |
9/27/2012 |
9/27/2014 |
|
41. |
stjbhub.com |
8/8/2011 |
8/8/2016 |
|
42. |
stjubhub.com |
9/27/2012 |
9/27/2013 |
|
43. |
stlubhub.com |
6/7/2009 |
6/7/2013 |
|
44. |
strbhub.com |
11/11/2010 |
11/11/2013 |
|
45. |
stsubhub.com |
9/5/2009 |
9/5/2013 |
|
46. |
sttbhub.com |
11/11/2010 |
11/11/2013 |
|
47. |
stu7bhub.com |
9/27/2012 |
9/27/2013 |
|
48. |
stu8bhub.com |
9/27/2012 |
9/27/2013 |
|
49. |
stubaub.com |
6/6/2009 |
6/6/2013 |
|
50. |
stubbuh.com |
9/6/2009 |
9/6/2013 |
|
51. |
stubchub.com |
1/28/2011 |
1/28/2016 |
|
52. |
stubdhub.com |
12/25/2011 |
12/25/2013 |
|
53. |
stubghub.com |
8/26/2009 |
8/26/2017 |
|
54. |
stubgub.com |
2/13/2011 |
2/13/2016 |
|
55. |
stubh7b.com |
5/22/2009 |
5/22/2013 |
|
56. |
stubh7ub.com |
9/27/2012 |
9/27/2013 |
|
57. |
stubh8b.com |
5/22/2009 |
5/22/2013 |
|
58. |
stubh8ub.com |
9/27/2012 |
9/27/2013 |
|
59. |
stubhaub.com |
11/11/2010 |
11/11/2013 |
|
60. |
stubhbub.com |
9/27/2012 |
9/27/2014 |
|
61. |
stubheb.com |
2/6/2009 |
2/6/2014 |
|
62. |
stubhhb.com |
5/23/2009 |
5/23/2013 |
|
63. |
stubhjb.com |
8/9/2011 |
8/9/2016 |
|
64. |
stubhnub.com |
9/27/2012 |
9/27/2013 |
|
65. |
stubhu7.com |
11/11/2010 |
11/11/2013 |
|
66. |
stubhu7b.com |
9/27/2012 |
9/27/2013 |
|
67. |
stubhu8b.com |
9/27/2012 |
9/27/2013 |
|
68. |
stubhua.com |
11/11/2010 |
11/11/2013 |
|
69. |
stubhub1.com |
7/17/2011 |
7/17/2013 |
|
70. |
stubhub2.com |
7/17/2011 |
7/17/2013 |
|
71. |
stubhub4.com |
12/18/2012 |
12/18/2013 |
|
72. |
stubhub7.com |
12/18/2012 |
12/18/2013 |
|
73. |
stubhub9.com |
12/18/2012 |
12/18/2013 |
|
74. |
stubhubc.com |
12/18/2012 |
12/18/2013 |
|
75. |
stubhubg.com |
9/27/2012 |
9/27/2014 |
|
76. |
stubhubh.com |
9/27/2012 |
9/27/2014 |
|
77. |
stubhubi.com |
11/11/2010 |
11/11/2013 |
|
78. |
stubhublcom.com |
7/10/2009 |
7/10/2015 |
|
79. |
stubhubm.com |
5/29/2009 |
5/29/2013 |
|
80. |
stubhubo.com |
11/11/2010 |
11/11/2013 |
|
81. |
stubhubu.com |
10/14/2011 |
10/14/2013 |
|
82. |
stubhubz.com |
6/5/2009 |
6/5/2013 |
|
83. |
stubhuc.com |
2/6/2009 |
2/6/2014 |
|
84. |
stubhudb.com |
11/11/2010 |
11/11/2013 |
|
85. |
stubhuf.com |
6/4/2009 |
6/4/2013 |
|
86. |
stubhug.com |
1/14/2009 |
1/14/2017 |
|
87. |
stubhugb.com |
9/27/2012 |
9/27/2014 |
|
88. |
stubhuhb.com |
9/27/2012 |
9/27/2014 |
|
89. |
stubhuj.com |
11/11/2010 |
11/11/2013 |
|
90. |
stubhujb.com |
10/1/2010 |
10/1/2013 |
|
91. |
stubhuk.com |
11/11/2010 |
11/11/2013 |
|
92. |
stubhuo.com |
11/11/2010 |
11/11/2013 |
|
93. |
stubhux.com |
11/11/2010 |
11/11/2013 |
|
94. |
stubhuy.com |
11/11/2010 |
11/11/2013 |
|
95. |
stubhuz.com |
11/11/2010 |
11/11/2013 |
|
96. |
stubhyb.com |
2/13/2011 |
2/13/2014 |
|
97. |
stublub.com |
6/4/2009 |
6/4/2013 |
|
98. |
stubvhub.com |
8/26/2009 |
8/26/2013 |
|
99. |
stubwub.com |
11/11/2010 |
11/11/2013 |
|
100. |
stubyub.com |
8/7/2011 |
8/7/2017 |
|
101. |
stugbhub.com |
9/27/2012 |
9/27/2013 |
|
102. |
stuhbhub.com |
9/27/2012 |
9/27/2014 |
|
103. |
stujbhub.com |
9/27/2012 |
9/27/2013 |
|
104. |
stushub.com |
2/21/2012 |
2/21/2016 |
|
105. |
stutbhub.com |
4/17/2009 |
4/17/2013 |
|
106. |
stuthub.com |
6/7/2009 |
6/7/2013 |
|
107. |
stuzbhub.com |
11/11/2010 |
11/11/2013 |
|
108. |
stvbhub.com |
11/11/2010 |
11/11/2013 |
|
109. |
styubhub.com |
1/14/2012 |
1/14/2016 |
|
110. |
stzubhub.com |
11/11/2010 |
11/11/2013 |
|
111. |
subthub.com |
9/6/2009 |
9/6/2013 |
|
112. |
swtubhub.com |
9/27/2012 |
9/27/2014 |
|
113. |
sxtubhub.com |
9/27/2012 |
9/27/2013 |
|
114. |
sztubhub.com |
9/27/2012 |
9/27/2013 |
|
115. |
szubhub.com |
11/11/2010 |
11/11/2013 |
|
116. |
tsubhub.com |
3/30/2010 |
3/30/2013 |
|
117. |
wwwlstubhub.com |
11/11/2010 |
11/11/2015 |
|
118. |
wwwwstubhub.com |
9/27/2012 |
9/27/2013 |
|
119. |
xstubhub.com |
9/27/2012 |
9/27/2013 |
|
120. |
ystubhub.com |
11/11/2010 |
11/11/2015 |
|
121. |
zstubhub.com |
9/27/2012 |
9/27/2013 |
|
122. |
stubhome.com |
2/2/2010 |
2/2/2014 |
|
123. |
ticketsebay.com |
7/4/2009 |
7/4/2013 |
