The Complainant is Alibaba Group Holding Limited of George Town, Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland, represented by Mayer Brown JSM, China.
The Respondent is Yifeng Tan of New South Wales, Australia.
The disputed domain name <alipay.com.au> is registered with Namescout.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 10, 2014. On September 10, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 1, 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.
The Center verified that the Complaint satisfied the formal requirements of the .au Dispute Resolution Policy (the "Policy" or ".auDRP"), the Rules for .au Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for .au 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 October 3, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 23, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 24, 2014.
The Center appointed Andrew F. Christie as the sole panelist in this matter on October 28, 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.
The Complainant was founded in China in 1999 and is a global leader in the field of e-commerce. Through its subsidiaries and affiliates it has offices in about 70 cities across China, as well as in Asia, the United States of America and Europe. For the nine months ended December 31, 2013, it had a total revenue of over RMB 40 billion and over 230 million active buyers across its platforms.
The Complainant operates two online business-to-business marketplaces, offers business management software and Internet infrastructure services, and has around 36.7 million registered users from more than 240 countries and regions. In 2004 the Complainant, through its affiliates, launched the Alipay platform at "www.alipay.com" under the brand "Alipay" and "支付宝" (i.e. "Alipay" in Chinese). It is one of the most widely used independent third-party payment solutions in China allowing businesses and individuals to make and receive payments on the Internet, and provides payment solutions for more than 460,000 merchants covering a wide range of industries.
The Complainant owns numerous trademark registrations for ALIPAY (the "ALIPAY trademark") in various countries around the world, including Australia (dating from December 2004), China, New Zealand and the United States of America.
The disputed domain name was registered on July 15, 2008. The Complainant has provided screenshots showing that, as of September 10, 2014, the disputed domain name resolved to a website consisting of a parking page containing sponsored links to various websites, including those of the Complainant, and a search engine box.
The Complainant contends that the disputed domain name is identical and/or confusingly similar to registered trademarks in which the Complainant has rights or interests because it incorporates the Complainant's ALIPAY trademark in its entirety. The addition of the country code Top-Level Domain ("ccTLD") identifier <.au> and the second-level extension of <.com> can be disregarded.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because: (i) the Complainant has not licensed, consented to or otherwise authorized the Respondent's use of its ALIPAY trademarks for any reason whatsoever, nor is the Respondent an authorized representative or partner of the Complainant; (ii) there is no evidence to suggest that the Respondent has been commonly known by the disputed domain name, and the Respondent's name does not reflect or correspond with the disputed domain name; (iii) to the best of the Complainant's knowledge and information, the Respondent does not own any trademark registrations reflecting or corresponding to the disputed domain name in Australia, where the Respondent appears to be domiciled; (iv) the disputed domain name resolves to a parking page that includes sponsored links that refer to the Complainant and includes links to the Complainant's websites and the websites of its competitors that most likely generated pay-per-click revenue for the Respondent; (v) the Respondent is not offering any bona fide goods or services for sale via the website to which the disputed domain name resolves; and (vi) as the disputed domain name is confusingly similar to the Complainant's well-known ALIPAY trademark it misleads users into believing that the disputed domain name is associated with the Complainant and may divert users to it, enabling the Respondent to make a commercial gain.
The Complainant contends that the disputed domain name was registered and is being used in bad faith because: (i) the Respondent has no rights or legitimate interest in the disputed domain name; (ii) the disputed domain name does not reflect or correspond to the Respondent's own name or the name of his business; (iii) as the Complainant's ALIPAY trademark is a made-up word it can be presumed that the Respondent's registration of the disputed domain name was motivated solely to take advantage of the Complainant's reputation in the ALIPAY trademarks and thereby make undue profits, and that the Respondent had knowledge of the Complainant and its ALIPAY trademarks at the time it registered the disputed domain name; (iv) the Complainant first began using, and applied to register, the ALIPAY trademark in Australia in 2004, four years before the disputed domain name was registered, and it has since acquired distinctiveness and worldwide fame such that it is inconceivable that the Respondent was not aware of the Complainant's ALIPAY trademarks at the time it registered the disputed domain name; and (v) the Respondent must have been aware of the Complainant's prior rights and interests in the disputed domain name since it resolves to a parking page that includes sponsored links which directly refer to the Complainant and includes some links to the Complainant's websites.
The Respondent did not reply to the Complainant's contentions.
When the ccTLD identifier and the second-level extension are ignored, the disputed domain name consists of the Complainant's ALIPAY trademark. Thus, the Panel finds that the disputed domain name is identical to a trademark in which the Complainant has rights.
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its ALIPAY trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name was used to resolve to a website which contained sponsored links to various websites, including those of the Complainant and of its competitors. According to the present record, therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The disputed domain name was registered approximately four years after the Complainant first registered its ALIPAY trademark. The evidence on the record provided by the Complainant with respect to the use of its trademark, combined with the absence of any evidence provided by the Respondent to the contrary, is sufficient to satisfy the Panel that, at the time the disputed domain name was registered, the Respondent most likely knew of the Complainant's trademark and knew that it had no rights or legitimate interests in the disputed domain name. Furthermore, the evidence on the record provided by the Complainant with respect to the Respondent's use of the disputed domain name indicates that the Respondent has used the disputed domain name to attract, for commercial gain, Internet users to a website by creating confusion with the Complainant's trademark as to the affiliation of that website. For all these reasons, the Panel is satisfied that the disputed domain name has been registered and is being used in bad faith.
The Complainant has requested transfer of the disputed domain name. Given that the Complainant owns an Australian registered trademark that is identical to the disputed domain name, the Complainant appears to satisfy the eligibility requirements for registration of the disputed domain name.
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 <alipay.com.au> be transferred to the Complainant.
Andrew F. Christie
Sole Panelist
Date: November 11, 2014