The epitome of cybersquatting is when you take that infringing domain and monetize it by selling products that are knockoffs of these sold by the trademark holder.
In the case of the domain Wyzes.com, the Chinese squatter used the domain to sell knockoff products of Wyze Labs, creators of high-quality, easy-to-use smart home products under the WYZE mark. Basically, an Alibaba seller rode on the coattails of a prominent American brand.
According to the UDRP, it’s quite possible that those lured by discounted prices of supposedly Wyze products, never received the products they ordered from the cybersquatter:
[…] uses the domain name to create the false impression that it is an authorized Wyze retailer, purporting to sell discounted Wyze products, either for commercial gain or to effectuate a scam.
The decision was thus easy for the Forum (NAF) panelist, who noted:
“Respondent was fully aware of Complainant’s well-known WYZE mark when Respondent registered the wyzes.com domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the goods promoted on that website.”
Final decision: Transfer the domain Wyzes.com to the Complainant. Happy Black Friday.
Copyright © 2024 DomainGang.com · All Rights Reserved.Wyze Labs, Inc. v. sun jie
Claim Number: FA2310002068265
PARTIES
Complainant is Wyze Labs, Inc. (“Complainant”), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia, USA. Respondent is sun jie (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is wyzes.com, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
PANEL
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Alan L. Limbury, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on October 27, 2023. Forum received payment on October 27, 2023.
On October 30, 2023, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to Forum that the wyzes.com domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) registration agreement, which is in Chinese, and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 31, 2023, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of November 20, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@wyzes.com. Also on October 31, 2023, the Chinese and English Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default in Chinese and English.
On November 21, 2023, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING
As noted, the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding in relation to the wyzes.com domain name shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, noting that the wyzes.com domain name is in English and resolves to an English language website. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese and English language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
PARTIES’ CONTENTIONS
A. Complainant
Complainant, Wyze Labs, Inc., provides high-quality, easy-to-use smart home products under the WYZE mark, including smart home cameras, light bulbs, and smart plugs. Complainant generates substantial sales from online orders through its website, “www.wyze.com”.
Complainant has rights in the WYZE mark through numerous trademark registrations, including with the United States Patent and Trademark Office (“USPTO”). Respondent’s wyzes.com domain name is confusingly similar to Complainant’s WYZE mark.
Respondent lacks rights or legitimate interests in the wyzes.com domain name since Respondent is not licensed or authorized to use Complainant’s WYZE mark and is not commonly known by the domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to create the false impression that it is an authorized Wyze retailer, purporting to sell discounted Wyze products, either for commercial gain or to effectuate a scam.
Respondent registered the wyzes.com domain name in bad faith with actual knowledge of Complainant’s rights in the WYZE mark and uses it in bad faith in connection with a website intended to pass itself off as a genuine website of Complainant or an authorized retailer for Respondent’s own commercial gain.
Furthermore, where a domain name is “so obviously connected with such a well-known name and products,” the very use of the domain name by “by someone with no connection with the products suggests opportunistic bad faith.” Parfums Christian Dior v. Quintas, D2000-0226
(WIPO May 17, 2000).
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant has established all the elements entitling it to relief.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the domain name should be cancelled or transferred:
(i) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
In view of Respondent’s failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences as it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint. However, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (‘Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint’).
Identical and/or Confusingly Similar
Complainant has shown that it has rights in the WYZE mark through numerous registrations, including with the USPTO (e.g., Reg. No. 5,482,810, registered on May 29, 2018). The Panel finds Respondent’s wyzes.com domain name to be confusingly similar to Complainant’s mark, only differing by the addition to the mark of the letter “s”, which does nothing to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Complainant has established this element.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The wyzes.com domain name was registered on September 6, 2023, many years after Complainant has shown that its WYZE mark had become well-known. It resolves to a website that is nearly identical to Complainant’s website and that purports to sell products under the WYZE trademark, including cameras, plugs, and light bulbs.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the wyzes.com domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA 1849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s well-known WYZE mark when Respondent registered the wyzes.com domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the goods promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the wyzes.com domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: November 23, 2023
