Wednesday , August 17 2022

Complainant lost UDRP for antiCoupang.com :DomainGang

Coupang is South Korea’s answer to Amazon, a large online retailer with millions of products.

But not everyone is happy, and someone registered the domain antiCoupang.com to share their objection to the company’s policies and practices.

The domain’s registrant calls Coupang “a bad and mean e-commerce company” and posts links to articles and videos of others that share the same sentiment.

Coupang Corporation filed a UDRP at the WIPO to take over the domain name antiCoupang.com. In doing so, they attempted to demonstrate that the Korean respondent reaps monetary benefits from their web site.

The Korean panelist at the WIPO did not find such evidence and ordered the domain antiCoupang.com to remain with the Respondent, as a criticism web site.

WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Coupang Corporation v. Contact Privacy Inc. Customer 0160873624 / Seungwook Lee, Lord’s Church
Case No. D2021-0831

1. The Parties

The Complainant is Coupang Corporation, Republic of Korea, represented by Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, United States of America.

The Respondent is Contact Privacy Inc. Customer 0160873624, Canada / Seungwook Lee, Lord’s Church, Republic of Korea.

2. The Domain Name and Registrar

The disputed domain name <anticoupang.com> is registered with Tucows Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 19, 2021. On March 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 1, 2021, 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 April 1, 2021 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 April 1, 2021. In response to a clarification request by the Center, the Complainant filed a second amended Complaint on April 8, 2021.

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 of the Complaint, and the proceedings commenced on April 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 29, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2021.

The Center appointed Moonchul Chang as the sole panelist in this matter on May 8, 2021. 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, Coupang Corporation, which was founded in 2010, is an online retail shopping company. Since then it has rapidly grown as a global leader of online marketplace which offers a wide variety of consumer, business, and industrial products.

The Complainant has obtained registrations for the COUPANG trademarks in the Republic of Korea (Registration No. 0224196, registered on January 3, 2012; figurative trademark Registration No. 4016163400000, registered on June 17, 2020) and in the United States of America (Registration No. 5173689, registered on April 4, 2017). In addition, the Complainant has used the domain name <coupang.com> which was registered on May 23, 2010.

According to the publicly available WhoIs information and confirmed by the Registrar, the disputed domain name <anticoupang.com> was registered on February 15, 2021 and it resolves to what appears to be a site critical of the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

(1) The disputed domain name is identical or confusingly similar to the Complainant’s trademark COUPANG because it incorporates the Complainant’s COUPANG marks in their entirety, adding only the generic term “anti” and the non-distinguishing “.com” generic Top-Level Domain (“gTLD”).

(2) The Respondent has no rights or legitimate interests in the disputed domain name. Firstly, the Respondent is not commonly known by the disputed domain name. Secondly, the Respondent has registered the disputed domain name using a privacy-protection service, interfering with the Complainant’s efforts to investigate the Respondent, the extent of its infringing activities, or the legitimacy of its claims. Thirdly, the Respondent has no rights or legitimate interests in the disputed domain name because it did not respond to the Complainant’s demand letter. Fourthly, the fact that the Respondent’s website presents as a criticism site is insufficient to confer rights or a legitimate interest in the disputed domain name. No disclaimer appears on the website and Coupang’s figurative logo is prominently displayed without authorization. Fifthly, the Respondent’s criticism is neither genuine nor noncommercial. The Respondent’s website allows the users to add subscribers to YouTube channels on the Respondent’s website that help monetize those Youtube channels. Finally, the Respondent’s actual gripe appears to be related to individuals or entities other than Coupang, suggesting this is not a genuine gripe site.

(3) The disputed domain name was registered and is being used by the Respondents in bad faith. Firstly, the Complainant’s COUPANG marks are distinctive and well-known, and have been extensively advertised and reported on in the United States and the Republic of Korea, making it difficult to imagine any good faith use of the disputed domain name. Secondly, registering the disputed domain name using the Complainant’s COUPANG marks for a website that falsely maligns the Complainant disrupts the Complainant’s business. Thirdly, the Respondent registered and uses the disputed domain name to attract Internet users to its website that makes false and misleading allegations against the Complainant by creating a likelihood of confusion with the Complainant’s COUPANG marks as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. Fourthly, the Respondent’s use of the Complainant’s logo on the website that exists for commercial purpose further constitutes bad faith. Fifthly, the Respondent has registered the disputed domain name using a privacy service, interfering with the Complainant’s ability to investigate its infringing activities or the legitimacy of its claims. Sixthly, the Respondent’s failure to respond to the Complainant’s correspondences is further evidence of bad faith. Finally, given the registration of its COUPANG marks, the fame of the Complainant’s COUPANG marks, the fact that the disputed domain name incorporates the Complainant’s marks, and fact that its website displays the Complainant’s logo, the Respondent undoubtedly knew of the Complainant’s rights in the COUPANG marks prior to registering the disputed domain name. By registering the disputed domain name with actual knowledge of the Complainant’s rights in the COUPANG marks, the Respondent acted in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel to decide the Complaint on the grounds of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, under paragraph 14(b) of the Rules, it is established that: “If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.”

In light of the above, the Panel may draw such inferences from the Respondent’s failure to comply with the Rules, as it considers appropriate.

Under paragraph 4(a) of the Policy, the Complainant must demonstrate that the three elements enumerated in paragraph 4(a) of the Policy have been satisfied. These elements are that:

(i) the disputed domain names are identical or confusingly similar to the Complainant’s trademark or service mark; and

(ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names; and

(iii) the disputed domain names have been registered and are being used in bad faith.

A. Identical or Confusingly Similar

The Disputed Domain Name incorporates the Complainant’s trademark COUPANG, adding the prefix “anti”. The addition of another term such as a word “anti” would not prevent a finding of confusing similarity under the first element. Numerous UDRP panels have held that where a domain name substantially incorporates a complainant’s trademark, this is sufficient to make the domain name “confusingly similar” within the meaning of the Policy (section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The gTLD suffix “.com” can be disregarded under the confusing similarity test. The Panel is of the opinion that the mere addition of a prefix to the Complainant’s trademark constitutes confusing similarity, as set out in paragraph 4(a)(i) of the Policy (section 1.13, WIPO Overview 3.0)

Accordingly, the Panel finds that the first element under paragraph 4(a) of the Policy has been met by the Complainant.

B. Rights or Legitimate Interests

In this case, the issue is whether the Respondent’s criticism site amounts to “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark…” in accordance with paragraph 4(c)(iii) of the Policy. The circumstances which UDRP panels have tended to take into account in considering whether criticism sites generate rights and legitimate interests are discussed in detail in the section 2.6 of WIPO Overview 3.0.

The Complainant asserts that the Respondent’s criticism site is neither genuine nor noncommercial. First, the Complainant contends that the Respondent’s website as a criticism site is insufficient to confer rights or a legitimate in the disputed domain name. In addition it continues to argue that no disclaimer appears on the website and the figurative Coupang’s logo is prominently displayed without authorization. However, in this case, it is clear to Internet users visiting the website at the disputed domain name that it is not operated by the Complainant. This is supported by the fact that the disputed domain name does not consist purely of the Complainant’s trade mark or, even, the Complainant’s trade mark plus a descriptive term; rather it includes the derogatory term “anti”, thereby clearly signaling its purpose of criticizing against the Complainant’s business. In addition the Respondent’s website merely displays Coupang’s logo to present the CEO and the major shareholder of the Complainant’s entity. The Panel finds that the disputed domain name is being used for free speech purposes and that there is no intent for cybersquatting or tarnishment. (section 2.6.1 of WIPO Overview 3.0).

Secondly, the Complainant contends that the Respondent’s website has a commercial purpose. The Complainant argues that the Respondent’s website allows Internet users to add subscribers to YouTube channels on its website that help monetize those YouTube channels. However, having reviewed the content of the Respondent’s website written in Korean language, the Panel notes that the Respondent’s website merely refers to many TV news video clips drawn from Korean news media and other YouTube commentators to bolster the Respondent’s criticism. There is no evidence that the Respondent itself has derived any commercial advantage from the website at the disputed domain name, i.e., by all appearances the website is noncommercial in nature.

As a result the Panel considers that the Respondent’s criticism website rebuts the Complainant’s claim to no rights or legitimate interests. There is no evidence that the website reflects anything other than the Respondent’s genuine views, albeit views which are objectionable to the Complainant. This conclusion does not reflect any finding by the Panel as to the truth of the content of the Respondent’s website. The Panel is not in the position to make any such assessment. This outcome simply means that, in the Panel’s view, the Complainant has not proved that the circumstances of the case come within the relatively limited confines of the Policy. It remains open to the Complainant to pursue defamation or other local court proceedings should the Complainant consider it appropriate to do so.

The Panel therefore concludes that the Complainant has failed to establish the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith

It is unnecessary to consider this aspect in view of the Panel’s conclusion above.

7. Decision

For the foregoing reasons, the Complaint is denied.

Moonchul Chang
Sole Panelist
Date: May 22, 2021

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