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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

eBay Inc. v. Fu ZhiYong

Case No. D2007-0865

 

1. The Parties

The Complainant is eBay Inc., San Jose, California, United States of America, represented by Cooley Godward Kronish LLP, United States of America.

The Respondent is Fu ZhiYong, ZhengZhou, China.

2. The Domain Names and Registrars

The disputed domain names <asebay.com> and <ebaysoho.com> are registered with Bizcn.com, Inc.

The disputed domain name <ebaysohos.com> is registered with FastDomain, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 13, 2007. On June 14, 2007, the Center transmitted by email to Bizcn.com, Inc. and FastDomain, Inc. a request for registrar verification in connection with the domain names at issue. On June 15, 2007 and June 16, 2007, Bizcn.com, Inc. and FastDomain, Inc. transmitted by email to the Center their verification responses confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 26, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 16, 2007. The Respondent did not submit any formal response. An email communication was received from the Respondent on July 3, 2007, which the Center has included in the case file and has forwarded it to the Panel for consideration as an informal Response.

The Center appointed Susanna H.S. Leong, Bruce E. O’Connor and Linda Chang as panelists in this matter on August 14, 2007. The Panel finds that it was properly constituted. Each member of 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 certification required by paragraph 3(b)(xiv) of the Rules is the minimum to demonstrate the admissibility of the statements made by a complainant, and the certification required by paragraph 5(b)(vii) of the Rules is the minimum to demonstrate the admissibility of the statements made by a respondent.

Without certification, a Panel may choose not to consider any submission, even in the case of pro se parties.

With certification, the Panel gives weight to those statements that are verified by the documents attached to the submissions, or by affidavits or declarations, or that are admitted by the other party, or of which the Panel can take administrative notice, in accordance with the Panel’s powers under paragraph 10(d) of the Rules.

In this case, Complainant has provided the required certification and its submission has been admitted. Most of the statements by Complainant are backed up by documents, are uncontested by Respondent, and are given considerable weight by the Panel.

Respondent has failed to submit any evidence other than his own statements, and has failed to provide the certification required by paragraph 5(b)(vii) of the Rules.

The Panel has decided to consider Respondent’s statements but has given them little weight.

The Complainant is eBay Inc., a Delaware corporation with its principal place of business in San Jose, California, USA. The Complainant has operated its “www.ebay.com” website under the EBAY name since September 1991 in connection with online commerce, trading and internet auction services and continues to do so.

The Complainant owns several federal registrations for the EBAY word mark in the United States of America and it owns numerous foreign trademark registrations for the EBAY word mark, including registrations in China, Taiwan, Province of China, Hong Kong, SAR of China, Japan, Viet Nam, Republic of Korea (the), Singapore, Malaysia, Thailand, Indonesia, the European Union, New Zealand, Australia, Benelux, Canada, Germany, Iceland, India, Israel, Mexico, Norway, Peru, Chile, Turkey, United Kingdom, Columbia, Czech Republic, Romania, Hungary, Saudi Arabia, Venezuela, South Africa and Switzerland. The Complainant also owns numerous pending trademark applications for the EBAY word mark in various jurisdictions around the world, including Egypt, India, Bulgaria, Jamaica and Pakistan.

The Complainant provides its online market place services in numerous countries all over the world and its services are offered in numerous languages and are accessible from virtually any location around the globe using the Internet. As of March 31, 2007, there were approximately one-hundred million items listed for sale on the eBay website at any given time. The Complainant has over two-hundred-thirty-three million registered users worldwide. In addition to its online trading services, the eBay website offers a variety of related services, including currency conversion tools, access to escrow services, charity auctions, theme-oriented pages and many others.

The disputed domain names were registered by the Respondent on September 29, 2005; September 27, 2006 and January 15, 2007. As of June 1, 2007, the <asebay.com> domain name resolved to the website at “www.asebay.com”. Like the Complainant’s website, the Respondent’s website at “www.asebay.com” is an English language online marketplace, which does not contain any Chinese text and which makes a variety of consumer goods available for sale. The trademarks and trade dress used on the Respondent’s website are identical or nearly identical to the trademarks and trade dress of the Complainant’s.

As of May 30, 2007, both the <ebaysoho.com> and <ebaysohos.com> domain names resolved to the website at “www.ebaysoho.com”. Like the Complainant’s website, the Respondent’s website at “www.ebaysoho.com” is an English language online marketplace, which does not contain any Chinese text and which makes a variety of consumer goods available for sale.

On April 25, 2007, counsel for the Complainant sent cease and desist letters and emails to the Respondent regarding its unauthorized use of the Complainant’s EBAY mark and the disputed domain names <asebay.com>; <ebaysoho.com>; and <ebaysohos.com>. A separate cease and desist letter was sent to the Respondent also on April 25, 2007 objecting to the unauthorized use of an imitation of the Complainant’s seven coloured eBay logo which the Respondent used in connection with a separate English language online marketplace that does not contain any Chinese text at “www.1837tiffany.com/shop”. This website no longer displays an imitation of the Complainant’s seven-coloured eBay logo.

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The Complainant contends that the disputed domain names are nearly identical and confusingly similar to the Complainant’s EBAY trademark based on the following grounds:

1. The <asebay.com> domain name wholly incorporates the Complainant’s distinctive EBAY mark, adding merely an ordinary descriptive or non-distinctive word. The Complainant contends that the addition of the word “as” to the Complainant’s EBAY mark exploits the trademark significance of the EBAY mark by suggesting that the Respondent’s “www.asebay.com” website is “similar to” or “as” the eBay site. Consequently, the Complainant contends that the addition of the prefix “as” does not lessen, but rather reinforces, the confusing similarity between the <asebay.com> domain name and the Complainant’s EBAY mark. See Microsoft Corporation v. J. Holiday Co., WIPO Case No. D2000-1493; and Aventis Pharma SA., Aventis Pharma Deutschland GmbH v. Jonathan Valicenti, WIPO Case No. D2005-0037.

2. The disputed domain names of <ebaysoho.com> and <ebaysohos.com> are also confusingly similar to the Complainant’s EBAY mark because these domain names again incorporate the Complainant’s distinctive and famous EBAY mark in its entirety, adding only the merely descriptive geographical term “SoHo[s]”. See The Nasdaq Stock Market, Inc. v. Vidudala Prasad, WIPO Case No. D2001-1493; Roberto Tomassini, Ty Canada Inc. and Ty Inc. v. Mike Chan at Beanie Canada, WIPO Case No. D2001-1366; Telstra Corporation Limited v. Ozurls, WIPO Case No. D2001-0046; and Creative Technology, Ltd. v. Cleveland Polite, WIPO Case No. D2006-1211.

3. The Complainant asserts that the EBAY trademark is famous. It is a coined word and the Complainant has been using the EBAY mark since at least as early as September 1995 in connection with its online person-to-person trading services. The Complainant has devoted substantial resources to advertise and promote its services and products under the EBAY mark and the mark embodies the substantial goodwill that the Complainant has earned as a result of providing high quality services and products. The Complainant further contends that it enjoys a widespread reputation in the marketplace as a high quality trading forum and the EBAY mark was ranked 47^th most valuable brand in the world by Business Week Magazine. Consequently, by adopting domain names that wholly incorporate the Complainant’s EBAY mark, and which convey the same overall visual and phonetic impression as the Complainant’s mark, the Respondent has created marks which are confusingly similar to the Complainant’s famous mark and has attempted to capitalize on the valuable EBAY brand. The Complainant contends that the Respondent intends to mislead consumers to believe that the domain names and/or their operator are affiliated with or endorsed by the Complainant. See Dr. Ing. h.c. F. Porsche AG v. Vasiliy Terkin, WIPO Case No. D2003-0888; and Microsoft Corporation v. Microsof.com aka Tarek Ahmed, WIPO Case No. D2000-0548.

Rights or Legitimate Interests

The Complainant contends that the Respondent has no legitimate rights or interests in the disputed domain names on the following grounds:

1. The Respondent registered the disputed domain names on September 29, 2005; September 27, 2006; and January 15, 2007. By these dates, the Complainant has well established rights in its EBAY mark, domain name and website at “www.ebay.com”.

2. The Respondent is not an authorized dealer, distributor or licensee of the Complainant even though the Respondent has asserted that both “ASEBAY” and “Ebaysoho” are websites established by a team of Ebay’s sellers. Despite this fact, the Respondent uses the distinctive and famous EBAY mark and logo on its websites at “www.asebay.com” and “www.ebaysoho.com” without authorization.

3. The Respondent is using the disputed domain names for commercial purposes. Like the Complainant’s website, the Respondent’s websites at “www.asebay.com” and “www.ebaysoho.com” are English language online marketplaces, which do not contain any Chinese text and which make a variety of consumer goods available for sale. The trademarks and trade dress used on the Respondent’s websites are identical or nearly identical to the trademarks and trade dress of the Complainant’s. The Respondent’s use of the disputed domain names for this purpose is in the Complainant’s view not bona fide according to the UDRP precedent.

4. The mere addition of a descriptive or generic word does not create a new or different mark in which the Respondent has legitimate rights.

Registered and Used in Bad Faith

The Complainant contends that the disputed domain names were registered and are being used in bad faith on the following grounds:

1. Given the Complainant’s prominence on the Internet, it is clear that the Respondent registered the disputed domain names in bad faith, with full knowledge that by including the EBAY mark as part of his domain names this would likely cause an Internet user visiting the websites at “www.asebay.com” and “www.ebaysoho.com” to assume that the domain names are somehow sponsored by or affiliated with the Complainant.

2. The fact that the Respondent registered and is using the domain names that incorporate the Complainant’s entire EBAY mark, blatantly uses the EBAY logo and trade dress on its website at “www.asebay.com” and states that “ASEBAY is established by a team of Ebay’s sellers” and further states that “Ebaysoho is established by a team of Ebay’s sellers” on his website at “www.ebaysoho.com”, support a finding of bad faith.

3. The Respondent’s bad faith is emphasized by its pattern of registering and using domain names incorporating the Complainant’s trademark with intent to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s mark.

4. The Respondent’s bad faith is further supported by the fact that he registered the domain names well after the Complainant registered its EBAY trademark and established rights in its <ebay.com> domain names.

5. The Respondent and/or persons affiliated with the Respondent modified the website at “www.1837tiffany.com/shop” after receiving the cease and desist letter from the Complainant and such action is additional evidence of bad faith.

6. The Respondent has neither taken down the offending website at “www.asebay.com” and “www.ebaysoho.com” nor deactivated the referring URL at “www.ebaysohos.com”. According to the Complainant, this is also evidence of bad faith.

B. Respondent

The Respondent made an informal email Response on July 3, 2007 and his contentions are as follows:

That the Respondent is a current student and is experimenting on the creation of various styles of website designs. With regard to the website for the domain name <asebay.com>, he has downloaded the Complainant’s “www.ebay.com” website designs for purposes of research and study. After the Respondent has been notified that the domain name <asebay.com> has infringed the intellectual property rights of the Complainant, he is agreeable to relinquish his rights to the domain name <asebay.com> and shut-down the website “www.asebay.com”.

With regard to the domain name <ebaysohos.com>, the Respondent explained that this is merely his attempt to register for a foreign bluehost space. In order to register for a bluehost space, registration of a domain name is a pre-requisite. The domain name does not display any web pages of its own and is linked to the website of “www.asebay.com”. The Respondent believes that he is not the only person in the world who has registered a domain name which incorporates the word “ebay” and he questions whether every single one of these domain names has infringed the Complainant’s intellectual property rights. The Respondent further contends that according to this logic, the Complainant eBay would also have infringed the rights of <eb.com>; <eba.com> or <bay.com> which in his mind is a ridiculous conclusion.

With regard to the domain name <ebaysoho.com>, the Respondent’s contentions are the same as (2) above. Furthermore, the Respondent contends that the website of “www.ebaysoho.com” is different in terms of style and contents from the Complainant’s eBay website and has no connections with the said website. Therefore, the Respondent contends that there can be no consumer confusion and to rely on the trade dress of website of “www.asebay.com” as a basis of complaint against the domain name <ebaysoho.com> is inappropriate.

 

6. Discussion and Findings

6.1 Language of the Proceeding

The language of the registration agreement for the disputed domain names, <asebay.com> and <ebaysoho.com>, is Chinese. The language of the registration agreement for the disputed domain name <ebaysohos.com> is English. Pursuant to Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. The Complainant has filed its Complaint requesting with supporting arguments that English be the language of proceeding. On June 26, 2007, the Center notified the Respondent that an administrative proceeding has been commenced against him pursuant to the Policy and the notification by the Center was in English and Chinese. On the same day, the Respondent replied to the Center’s email notification in English that he is the owner of domain names <ebaysoho.com> and <asebay.com> and expressing difficulties in understanding English and requested Chinese to be used in this Complaint. The Complainant in its Complaint has submitted for English to be the language of the administrative proceeding and has provided the following reasons in support of its submission:

a. That the domain names are in English and that the domain names do not refer to or connote China or any Chinese words.

b. That the domain names each resolve to websites that are entirely in English and these websites do not contain any Chinese text.

c. Furthermore, the other website at “www.1837tiffany.com/shop” is in English and the Respondent or persons affiliated with the Respondent made substantive changes to this website upon receiving the English-language cease and desist email and letter from the Complainant’s counsel on April 25, 2007.

d. The Respondent’s websites are largely grammatically and syntactically correct.

All these factors cited from (a) to (d) demonstrate that the Respondent understands and is proficient in English.

On June 27, 2007, the Center issued a notification to the Respondent on the issue of the language of the proceeding stating that under the circumstances the Center would proceed with the matter and would refer any subsequent determinations to be made by the Panel.

(i) The Panel’s discretion under the Policy

Paragraph 11 of the Rules provides:

“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.”

Thus, the parties may agree on the language of the administrative proceeding. In the absence of an agreement, the language of the registration agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.

(ii) The Circumstances of this Case

One important consideration is the issue of fairness to both parties in their abilities to prepare the necessary documents for this proceeding and also to respond adequately to these documents when they are served upon the parties.

In particular, the Panel notes that the material facts of this proceeding are generated in the English language: the disputed domain names and the contents of the Respondent’s websites. On record, the Respondent appears to be Chinese and is thus presumably not a native English speaker but the Panel finds that persuasive evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. This is especially evident when the website at “www.1837tiffany.com” was changed by the Respondent or persons affiliated with the Respondent after receiving the cease and desist notifications from the Complainant. Furthermore, the Respondent has also been notified of the administrative proceeding in both English and Chinese. The Respondent has also made an informal email Response in Chinese to the Complainant’s complaint, which is acceptable to the Center and the Panel (with Panelist O’Connor relying on the representations of Panelists Leong and Chang as to the substance of Respondent’s statements). The choice of English as the language of the present proceeding is on balance fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case.

After considering the circumstances of the present case, the Panel decides that the proceeding should be English and the decision of the Panel will be rendered in English.

6.2 Substantive Elements of the Policy

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must establish that each of the three following elements is satisfied:

1. the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

2. the Respondent has no rights or legitimate interests in respect of the domain name; and

3. the domain name has been registered and is being used in bad faith.

Paragraph 4(a) of the Policy clearly states that the burden of proof lies with the Complainant to establish that all these three elements are satisfied in this proceeding.

Furthermore, pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis 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, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under the Rules of any request from the Panel, the Panel shall draw such inferences therefrom, as it deems appropriate.

On the basis of the evidence introduced by the Complainant and in particular with regard to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Complainant has produced substantial evidence to demonstrate that it has registered trademark rights and continue to have such rights in the EBAY mark in many countries throughout the world.

In assessing the degree of similarity between the Complainant’s trademark and the disputed domain names, the Panel shall have regard to the degree of visual, aural or conceptual similarity between them and where appropriate, evaluate the importance to be attached to these different elements. The issue of degree of similarity between the Complainant’s EBAY mark and the disputed domain names is to be considered from the perspective of the average consumer of the goods or services concerned and in this case, the average consumer is the Internet user seeking to purchase or download information about the Complainant’s products and services. We shall now consider each of the disputed domain names in turn:

<asebay.com>

The disputed domain name comprises (a) an exact reproduction of the Complainant’s trademark EBAY and (b) the prefix English word “as”. The element “ebay” is the dominant and the distinctive element of the Complainant’s marks and it has been reproduced in its entirety in the disputed domain name. The Panel accepts the Complainant’s contention that the addition of a descriptive English word “as” does not prevent the disputed domain name from being identical or confusingly similar and is not sufficient to render the disputed domain name distinctive from the trademark of the Complainant.

<ebaysoho.com> and <ebaysohos.com>

Similarly, the disputed domain names comprise (a) an exact reproduction of the Complainant’s trademark EBAY and (b) a suffix which either is a geographical location referring to the “Soho” district in New York City or London or an acronym for “Small Office Home Office”. In either case, the mere addition of such a suffix is not sufficient to render the disputed domain names distinctive from the trademarks of the Complainant and does not change the fact that they are confusingly similar to the Complainant’s EBAY mark.

Bearing in mind the following factors, in particular (a) the widespread reputation of the Complainant’s trademark; (b) the highly distinctive character of the Complainant’s EBAY mark; (c) the dominant component of the disputed domain names; and (d) the visual, aural and similarities between them, the Panel therefore finds that the disputed domain names <asebay.com>; <ebaysoho.com>; and <ebaysohos.com> are confusingly similar to a trademark or service mark in which the Complainant has rights.

The Panel finds for the Complainant on the first part of the test.

B. Rights or Legitimate Interests

Based on the following reasons the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name:

1. The Respondent has not provided evidence of a legitimate use of the domain name or reasons to justify the choice of the words “asebay”; “ebaysoho”; and “ebaysohos” in his business operations;

2. There was no evidence on the record to show that the Complainant has licensed or otherwise permitted the Respondent to use its trademark or to apply for or use any domain name incorporating the trademark;

3. There is no indication whatsoever on the record that the Respondent is commonly known by the disputed domain name and/or is using the domain name in connection with a bona fide offering of goods or services;

4. The Complainant’s EBAY word mark is a coined word which is highly distinctive and it enjoys a worldwide reputation with regard to its online marketplace services. Consequently, in the absence of contrary evidence from the Respondent, the EBAY mark is not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant.

According to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:

“(i) before any notice to you [Respondent] of the dispute, your use 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”

The Respondent has not adduced any evidence before the Panel to demonstrate that he has rights or legitimate interests in the domain names in any of the abovementioned circumstances. The Respondent has submitted that the website for “www.asebay.com” was done as an experiment and that he has downloaded the web pages of the Complainant’s “www.ebay.com” for purposes of research and study. However, it is also clear from the evidence adduced by Complainant that the Respondent is using “the look-alike” website at “www.asebay.com” for commercial purposes as a variety of consumer goods are offered for sale at this website. Such a use by the Respondent cannot constitute any legitimate rights or interests on its part. In fact, the Respondent in his Response is prepared to relinquish its rights on this disputed domain name and shut down the website “www.asebay.com”. As for the other two disputed domain names <ebaysoho.com> and <ebaysohos.com>, the Panel finds that it does not have before it any evidence of the circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances which might reasonably be said to give to the Respondent a right to or legitimate interest in the said domain names.

The Panel finds for the Complainant on the second part of the test.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:

(i) circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) the Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line 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.

The Panel concludes based on the case file that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.

Firstly, the Panel finds that the Complainant enjoys a worldwide reputation in its highly distinctive EBAY trademark with regard to its very successful online market place services since 1995. In view of the Complainant’s fame and notoriety in its EBAY mark and its highly successful business model online, the Panel finds that it is not conceivable that the Respondent would not have had actual notice of the Complainant’s trademark rights at the time of the registration of the domain names. In fact, the Respondent did not deny that he had knowledge of the Complainant’s trademark at the time of the registration of the disputed domain names. In its Response, the Respondent admitted that he has downloaded the contents of the Complainant’s “www.ebay.com” websites for his website at “www.asebay.com”. The Respondent’s knowledge of the Complainant’s EBAY mark before or at the time of registration is undisputed.

The Complainant has also adduced evidence to prove that by using confusingly similar disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s websites offering similar online marketplace services. Given the fame of the Complainant’s EBAY mark, the compelling conclusion is that the Respondent, by choosing to register and use domain names which are confusingly similar to the Complainant’s famous mark, intended to ride on the goodwill of the Complainant’s mark in an attempt to exploit, for commercial gain, Internet traffic destined for the Complainant. Consequently, the Respondent has through the use of a confusingly similar domain names created a likelihood of confusion with the Complainant’s EBAY trademark and this constitutes a misrepresentation to the public that his websites are in one way or the other associated or connected with the Complainant’s. The Complainant’s arguments that the domain names are registered and are being used in bad faith are further buttressed by the evidence that the Respondent has not merely registered and used domain names that incorporate the Complainant’s entire EBAY mark, but has also blatantly used the eBay seven-coloured logo and trade dress on its website at “www.asebay.com” with accompanying statements such “ASEBAY is established by a team of Ebay’s sellers” and that “Ebaysoho is established by a team of Ebay’s sellers” on its website at “www.ebaysoho.com”. On the other hand, the Respondent has not succeeded in convincing the Panel that his choice of the disputed domain names and his conduct as far as the websites on to which these domain names resolve are in fact bona fide.

The Panel finds for the Complainant on the third part of the test.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names, <asebay.com>; <ebaysoho.com>; and <ebaysohos.com> be transferred to the Complainant.

Susanna H.S. Leong Presiding Panelist
Bruce E. O’Connor Panelist	Linda Chang Panelist

Dated: August 28, 2007