Westmore · UDRP DecisionFenxt.com
The Panel ordered transfer of <fenxt.com>. It found that Blackbaud had established common law trademark rights in FE NXT through continuous use since at least May 1, 2015 and evidence that users associated the term with its Financial Edge NXT software. The domain reproduced FE NXT without the space. The Respondent had no authorization, was not commonly known by the domain, and used it for a website displaying pornographic content and gambling advertisements. The Panel found that this was neither bona fide nor fair use and that the domain was registered and used intentionally to attract Internet users for commercial gain through confusion with the Complainant’s mark.
The timeline behind fenxt.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind fenxt.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates how a complainant can establish UDRP standing through common law rights in an abbreviation of a registered product name when evidence shows continuous use and actual consumer recognition. It also shows that use of an exact-match domain for pornographic material and gambling advertisements can support both the absence of legitimate interests and commercial-confusion bad faith.
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 Blackbaud, Inc. v. Wang Zhengxin Case No. D2019-0212 1. The Parties The Complainant is Blackbaud, Inc. of Charleston, South Carolina, United States of America (“United States”), represented by Nelson Mullins Riley & Scarborough, LLP, United States. The Respondent is Wang Zhengxin of Hunan, China. 2. The Domain Name and Registrar The disputed domain name <fenxt.com> is registered with Bizcn.com, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 28, 2019. On January 29, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 12, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 12, 2019 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 amended Complaint on February 13, 2019. On February 12, 2019, the Center sent 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 February 13, 2019. The Respondent did not comment on the language of the proceeding. The Center verified that the Complaint together with the amended 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 in English and Chinese of the Complaint, and the proceedings commenced on February 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 11, 2019. The Center appointed Matthew Kennedy as the sole panelist in this matter on March 14, 2019. 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 The Complainant is a cloud software company providing non-profit software and services headquartered in the United States and with international offices, including one in Hong Kong, China. The Complainant works with more than 40,000 non-profit customers in over 60 countries. Its products include Financial Edge NXT, which is a cloud-based upgrade to its Financial Edge accounting software. The Complainant is the registered proprietor of United States trademark registration number 4,906,122 for FINANCIAL EDGE NXT, registered on February 23, 2016 in respect of services in class 42. The Complainant has also used the term FE NXT continuously since May 1, 2015 in connection with products and services associated with its Financial Edge NXT software. The Respondent is an individual located in China. He registered the disputed domain name on July 23, 2017. The disputed domain name resolves to a website titled Big Banana films, net and online cinema, in Chinese. The website offers pornographic videos and displays advertising for gambling websites. Although the advertising is in Chinese, most of the website’s other textual content is in English. 5. Parties’ Contentions A. Complainant The disputed domain name is identical to the Complainant’s trademark FE NXT. The Complainant obtained valid common law rights in the FE NXT Mark in the United States and internationally dating back as early as 2015. The disputed domain name consists solely of that mark. The Respondent has no prior rights or legitimate interests in the disputed domain name. The Complainant has not authorized the Respondent to use the FE NXT mark. The Respondent is not a licensee of the FE NXT mark. Moreover, the Respondent is not commonly known by the name FE NXT. The Respondent is using the disputed domain name, which is identical to the FE NXT mark, to host the website which features pornographic and gambling content. The disputed domain name was registered and is being used in bad faith. The disputed domain name was registered and is being used for the sole purpose of attracting Internet traffic to the Respondent’s website, which features pornographic and gambling content. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding Paragraph 11(a) of the Rules provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative 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 proceeding”. The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese. The Complainant requests that the language of the proceeding be English. Its main arguments are (i) that the language of the disputed domain name and the Complainant’s trademark is English, (ii) the website to which the disputed domain name resolves contains English language content, (iii) the Respondent owns numerous other English-language domain names, (iv) the Respondent is using a hosting company in the United States which presumably does business in English; and (v) requiring translation of the amended Complaint into Chinese would place an unnecessary burden on the Complainant and unduly delay the proceeding. Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin , WIPO Case No. D2006-0593 ; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd. , WIPO Case No. D2008-0293 . The Panel observes that in this proceeding the Complaint was filed in English. The Panel notes that, apart from the hyperlinks, most of the textual content on the Respondent’s website is in English, from which it is reasonable to infer that the Respondent is able to communicate in that language. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay. Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. The Panel would have accepted a Response in Chinese, but none was filed. 6.2 Substantive Issues Paragraph 4(a) of the Policy provides that a complainant must prove each of the following elements: (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 The Complaint is based on an allegation of common law rights in the trademark FE NXT and not on the Complainant’s trademark registration for FINANCIAL EDGE NXT for the purposes of the assessment of the first element. The evidence shows that the Complainant has used the term FE NXT continuously since at least May 1, 2015 to refer to its Financial Edge NXT software, including on its website and in webinars. The evidence also shows that users of the Complainant’s Financial Edge NXT software widely refer to that product as FE NXT, including in social media posts and in product reviews. Based on the evidence submitted, the Panel is satisfied that the Complainant has demonstrated that the term FE NXT has become a distinctive identifier that consumers in the United States and possibly elsewhere associate with the Complainant’s software and, therefore, that the Complainant has common law rights in the trademark FE NXT in the United States. The disputed domain name incorporates the FE NXT trademark, omitting only the space in the middle which, for technical reasons, cannot form part of a domain name. The only other element in the disputed domain name is the generic Top-Level Domain (“gTLD”) suffix “.com”. A gTLD suffix is generally disregarded for the purposes of assessing confusing similarity under the Policy. See Lego Juris A /S v. Chen Yong , WIPO Case No. D2009-1611 ; Dr. Ing. h.c. F. Porsche AG v. Zhanglei , WIPO Case No. D2014-0080 . Therefore, the Panel finds that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy: “(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 trademark 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 trademark or service mark at issue.” The Panel has already found that the disputed domain name is identical or confusingly similar to the Complainant’s FE NXT trademark. The Complainant informs the Panel that it has not authorized the Respondent to use the FE NXT mark and that the Respondent is not a licensee of that mark. As regards the first and third circumstances above, the disputed domain name is being used with a website displaying pornographic content and advertising for gambling websites. In the circumstances, that is not a bona fide offering of goods or services for the purposes of the Policy and there is no evidence of preparations to make such a use. Nor is that a legitimate noncommercial or fair use of the disputed domain name. Accordingly, the Panel does not find that the Respondent’s use falls within the first or third circumstance of paragraph 4(c) of the Policy. As regards the second circumstance, the Respondent’s name is listed in the WhoIs service as “wangzhengxin”, not “fenxt”. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by the second circumstance of paragraph 4(c) of the Policy. In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent did not rebut that case because he did not respond to the Complaint. Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that certain circumstances, if found by the panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows: “(iv) by using the [disputed] domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.” The Respondent registered the disputed domain name in July 2017, after the Complainant acquired its registered trademark rights in FINANCIAL EDGE NXT and common law rights in the trademark FE NXT. The disputed domain name incorporates the Complainant’s FE NXT trademark, minus the space, with no other elements besides a gTLD suffix, which is a technical requirement of registration. Nothing on the website indicates any reason for registering the disputed domain name. In these circumstances, the Panel finds it more likely than not that the Respondent was aware of the Complainant, its trademark and its product at the time that he registered the disputed domain name and that he deliberately registered the disputed domain name in bad faith. The Respondent uses the disputed domain name, which incorporates the Complainant’s FE NXT trademark, minus the space, with a website that displays pornographic content and advertising for gambling websites. That use is for commercial gain, whether it is for the commercial gain of the Respondent or the operators of the advertised websites, or both. See Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright , WIPO Case No. D2007-0267 . Given these facts, the Panel considers that the Respondent’s use of the disputed domain name intentionally attempts to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy. 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 <fenxt.com> be transferred to the Complainant. Matthew Kennedy Sole Panelist Date: March 17, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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