Ibmdeveloper.net

The timeline behind ibmdeveloper.net

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION International Business Machines Corporation (IBM) v. song he Case No. D2024-0611 1. The Parties The Complainant is International Business Machines Corporation (IBM), United States of America (“United States” or “U.S.”), internally represented. The Respondent is song he, China. 2. The Domain Name and Registrar The disputed domain name <ibmdeveloper.net> is registered with Gname 009 Inc. (the “Registrar”). 3. Procedural History The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 8, 2024. On February 9, 2024, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 21, 2024, 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 (John Doe) and contact information in the Complaint. The Center sent an email communication to the Complainant on February 21, 2024, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center informed the parties in Chinese and English, that the language of the registration agreement for the disputed domain name is Chinese. The Complainant filed an amended Complaint in English on February 23, 2024, which includes a request for English to be the language of the proceeding. The Respondent did not submit any comment on the Complainant’s submission. On February 29, 2024, the Complainant filed a second amended Complaint following the Center’s email requesting it to clarify the discrepancy regarding the disputed domain name. 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 Chinese and English of the Complaint, and the proceedings commenced on February 29, 2024. In accordance with page 2 the Rules, paragraph 5, the due date for Response was March 20, 2024. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 21, 2024. The Center appointed Karen Fong as the sole panelist in this matter on April 2, 2024. 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 and has been a leading innovator in the design and manufacture of a wide array of products that record, process, communicate, store and retrieve information, including computers and computer hardware, software and accessories. Incorporated on June 16, 1911 as an amalgamation of three previously existing companies, the Complainant officially became International Business Machines on February 14, 1924. The Complainant has been offering products under the trade mark IBM ever since. In 2023, the Complainant was ranked 17 th most valuable global brand by BrandZ. In 2022, the Complainant was ranked the 18 th most valuable global brand by BrandZ, the 18 th best global brand by Interbrand, the 49 th largest company on the Fortune U.S. 500 list, and the 168 th largest company on the Fortune Global 500 list. The Complainant owns trade mark registrations for IBM in 131 countries all around the world including the following: -United States trade mark registration no. 4,181,289 for IBM (stylised) registered on July 31, 2012; United States trade mark registration no. 1,243, 930 for IBM registered on June 28, 1983 United States trade mark registration no. 640, 606 registered on January 29, 1957 (the “Trade Mark”). The Respondent appears to be based in China. The disputed domain name was registered on June 17, 2023, and resolves to a gambling website which offers betting services (the “Website”). 5. Parties’ Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the disputed domain name. Notably, the Complainant contends that the disputed domain name is confusingly similar to the Trade Mark, that the Respondent has no rights or legitimate interests with respect to the disputed domain name, and that the disputed domain name was registered and is being used in bad faith. The Complainant requests transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary Issue: Language of the Proceeding 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 page 3 in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. The Complaint was filed in English. The Complainant requested that the language of the proceeding be English for the following main reasons: - The disputed domain name consists of English words rather than Chinese characters; - There are English words in the Website content; - The Complainant is based in the United States and is not able to communicate in Chinese, having to translate the Complaint into Chinese would unfairly disadvantage and burden the Complainant in terms of costs and delay the proceeding and adjudication of this matter. The Respondent has not challenged the Complainant’s language request and in fact has failed to file a response in either English or Chinese. 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 (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0 ”), section 4.5.1). 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. 6.2 Substantive Issues A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trade mark and the disputed domain name. WIPO Overview 3.0 , section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trade mark or service mark for the purposes of the Policy. WIPO Overview 3.0 , section 1.2.1. The Panel finds the entirety of the Trade Mark is reproduced within the disputed domain name. Accordingly, the disputed domain name is confusingly similar to the Trade Mark for the purposes of the Policy. WIPO Overview 3.0 , section 1.7. While the addition of the other term here “developer” after the Trade Mark in the disputed domain name may bear on assessment of the second and third elements, the Panel finds the addition of such term does not prevent a finding of confusing similarity between the disputed domain name and the Trade Mark for the purposes of the Policy. WIPO Overview 3.0 , section 1.8. Based on the available record, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or page 4 legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0 , section 2.1. Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant’s prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise. Moreover, the nature of the disputed domain name is inherently misleading as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. WIPO Overview 3.0 , section 2.5.1. Based on the available record, the Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. In the present case, the Panel notes that the Respondent must have been aware of the Trade Mark when he registered the disputed domain name given the fact that the Trade Mark is a world-famous trade mark. It is therefore implausible that the Respondent was unaware of the Complainant when he registered the disputed domain name. In the WIPO Overview 3.0 , section 3.2.2 states as follows: “Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.” The fact that there is a clear absence of rights or legitimate interests coupled with the Respondent’s choice of the disputed domain name without any explanation is also a significant factor to consider (as stated in WIPO Overview 3.0 , section 3.2.1). The disputed domain name falls into the category stated above and the Panel finds that registration is in bad faith. The addition of the term “developer” after the Trade Mark further reflects that the Respondent had the Complainant in mind and was targeting it when registering the disputed domain name given the reputation of the Complainant in the field of technology development. The disputed domain name is also being used in bad faith. The Website which is a gaming and betting site was set up for the commercial benefit of the Respondent. It is highly likely that Internet users when typing the disputed domain name into their browser, or finding it through a search engine would have been looking for a site operated by the Complainant rather than the Respondent. The disputed domain name is likely to confuse Internet users trying to find the Complainant’s website. Such confusion will inevitably result due to the incorporation of the Trade Mark as the most prominent element of the disputed domain name. Such confusion is potentially detrimental to the Complainant. The Respondent employs the fame of the Trade Mark to mislead users into visiting the Website instead of the Complainant’s. From the above, the Panel concludes that the Respondent intentionally attempted to attract for commercial gain, by misleading Internet users into believing that the Website is authorised or endorsed by the Complainant. page 5 The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith. Based on the available record, the Panel finds the third element of the Policy has been established. 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 <ibmdeveloper.net> be transferred to the Complainant. /Karen Fong/ Karen Fong Sole Panelist Date: April 16, 2024

Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.