Westmore · UDRP DecisionLeamanteam.com
The Panel ordered transfer of <leamanteam.com>. It found the domain confusingly similar to the Complainants’ LEAMAN TEAM and MAX LEAMAN marks, found no rights or legitimate interests, and concluded that registration and use of the domain for a website copying the Complainants’ website constituted bad faith.
The timeline behind leamanteam.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
This decision illustrates how a copied or cloned complainant website can be decisive across the second and third UDRP elements. It also shows that a panel may recognize common law trademark rights where the corresponding trademark application postdates the domain registration, provided the panel is satisfied that rights arose through earlier use.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Dana Leaman, Max Leaman v. Mei Fei Case No. D2017-2582 1. The Parties The Complainants are Dana Leaman and Max Leaman of Austin, Texas, United States of America (“United States”), represented by Kleinman Law Firm, United States. The Respondent is Mei Fei of China. 2. The Domain Name and Registrar The disputed domain name <leamanteam.com> is registered with Bizcn.com, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 23, 2017. On December 26, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 5 and 12, 2018, the Registrar transmitted by email to the Center its verification response providing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainants filed two Amended Complaints on January 17, 2018. On January 12, 2018, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainants requested that English be the language of the proceeding on January 12, 2018. The Respondent did not reply by the specified due date. The Center verified that the Complaint together with the Amended Complaints 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 in English and Chinese of the Complaint, and the proceeding commenced on January 25, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 14, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 15, 2018. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on March 2, 2018. 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. Complainants The First Complainant, Dana Leaman, is an individual resident in the State of Texas in the United States, and is the applicant for registration in the United States of the trade mark LEAMAN TEAM under application No. 87698487 filed on November 27, 2017, and asserting a date of first use in commerce of January 1, 2009. The Second Complainant, Max Leaman, is an individual resident in the State of Texas in the United States, and is the owner of United States registration No. 4292203 for the Trade Mark MAX LEAMAN, with a registration date of February 19, 2013. The Second Complainant is also the registrant of the domain name <maxleaman.com>. The Complainants are the owners of a mortgage broker business based in the State of Texas in the United States, and the owners and operators of the website “www.maxleaman.com” featuring the Complainant’s LEAMAN TEAM and MAX LEAMAN trade marks (the “Trade Mark(s)”) and promoting the mortgage broking business of the Complainants. B. Respondent The Respondent is apparently an individual resident in China. C. The Disputed Domain Name The disputed domain name was registered on November 11, 2017. D. The Respondent’s Use of the Disputed Domain Name The disputed domain name has been used in respect of a website (the “Website”) which copies the content of the Complainants’ “www.maxleaman.com” website. 5. Parties’ Contentions A. Complainants The Complainants contend that the disputed domain name is identical or confusingly similar to the 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. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Consolidation of Complainants Past UDRP decisions suggest that a complaint may be brought by multiple complainants where (i) the complainants have a specific common grievance against the respondent, or the respondent has engaged in common conduct that has affected the complainants in a similar fashion; and (ii) it would be equitable and procedurally efficient to permit the consolidation (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.1 ). In the present proceeding, the First Complainant asserts common law rights in the LEAMAN TEAM Trade Mark; the Second Complainant is the owner of the MAX LEAMAN Trade Mark and registrant of the <maxleaman.com> domain name; the Complainants are the owners of the business which uses the Trade Marks, including operating the “www.maxleaman.com” website; and the Respondent is fraudulently passing itself off as the business of the Complainants in order to engage in fraudulent activities. The Complainants have common grievances against the Respondent, and the Respondent has engaged in common conduct that has affected the Complainants’ rights in a similar fashion. In all the circumstances, the Panel determines, under paragraph 10(e) of the Rules, that consolidation of the Complainants is procedurally efficient and equitable to all the Parties, is consistent with the Policy and Rules, and comports with prior relevant UDRP decisions in respect of this issue. 6.2 Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, 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 Complainants have requested that the language of the proceeding be English for several reasons, including the fact the Website (being a copy of the Complainants’ “www.maxleaman.com” website) is an English language website. The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not file a response. 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 considers that the English language Website indicates that the Respondent is conversant in English. 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. 6.3 Substantive Elements of the Policy The Complainants must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar The Panel finds that the Complainants have rights in the MAX LEAMAN Trade Mark acquired through use and registration; and common law rights in the LEAMAN TEAM Trade Mark acquired through use. The disputed domain name incorporates the entirety of the LEAMAN TEAM Trade Mark, and one of the dominant features of the MAX LEAMAN Trade Mark (the word “leaman”) is recognisable in the disputed domain name (see WIPO Overview 3.0 , section 1.7 ). The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Marks. B. Rights or Legitimate Interests 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: 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 Complainants have not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the 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 it 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 used the disputed domain name in respect of the Website, to mislead Internet users into believing the Website is the Complainants’ legitimate website. Furthermore, the Complainants contend that the website is used for phishing for personal information, and the Respondent has not rebutted the contention. 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 Complainants’ prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith In light of the Respondent’s registration and use of the disputed domain name in respect of the Website, the Panel has no hesitation in concluding that the disputed domain name has been registered and is being used in bad faith. 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 <leamanteam.com> be transferred to the Complainants. Sebastian M.W. Hughes Sole Panelist Dated: March 16, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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