The Complainant is HomeAway.com, Inc., United States of America (“United States”), represented by Kilpatrick Townsend & Stockton LLP, United States.
The Respondent is Zhu xiaolong, China.
The disputed domain name <provrbo.com> is registered with DomainName Highway LLC (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2021. On June 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 30, 2021, 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.
On June 30, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on June 30, 2021. The Respondent did not comment on the language of the proceeding.
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 and 4, the Center formally notified the Respondent of the Complaint in English and Chinese, and the proceeding commenced on July 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 28, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 5, 2021. 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.
The Complainant is a company incorporated in the United States and the owner and operator of a global online marketplace for the vacation rental industry, founded in 1985 and operated via the website “www.vrbo.com”. The Complainant currently has over two million online bookable listings of vacation rental homes and apartments in over 190 countries.
The Complainant is the owner of numerous registrations for the trade mark VRBO (the “Trade Mark”) in jurisdictions worldwide, including United States registration No. 76505701, with a registration date of March 9, 2004; and Chinese registration No. 33372168, with a registration date of May 14, 2019.
The Respondent is apparently an individual resident in China.
The disputed domain name was registered on March 23, 2021.
The disputed domain name has been used by the Respondent in respect of a predominantly Chinese language website with commercial links to pornographic and gambling websites (the “Website”).
The Complainant contends that the disputed domain name is identical or confusingly similar to its registered and unregistered trade marks; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
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.
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 order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding.
The Complainant has requested that the language of the proceeding be English, and submits that the Respondent should be considered to know at least some English, for several reasons including: (1) the disputed domain name is an English language domain name; (2) the Website contains some English language content; and (3) the Respondent has registered a large number of English language domain names.
The Panel would have accepted a response in Chinese, but the Respondent did not file a response and did not file 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.
The Panel notes that there is some evidence which suggests that the Respondent might be conversant in English, that the Respondent has chosen not to contest this proceeding, and that all of the Center’s communications with the Parties have been sent in English and Chinese.
The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
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.
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) prefaced by the word “pro”.
Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8).
The Panel therefore finds that the disputed domain name is confusingly similar or identical to the Complainant’s trade marks.
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Complainant’s trade marks. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the Respondent has made use of the disputed domain name, for commercial gain, by providing links to pornographic and gambling related websites on the Website.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
In light of the evidence of the Respondent’s use of the Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy. By using the confusingly similar disputed domain name, the Respondent has sought commercial gain caused by the misdirection of Internet users.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used 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 disputed domain name <provrbo.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: August 19, 2021