Ball Corporation v. Jiahongnetwork Jiahongnetwork
Claim Number: FA2011001919288
Complainant is Ball Corporation (“Complainant”), represented by Sarah J Schneider of Sheridan Ross P.C., Colorado, USA. Respondent is Jiahongnetwork Jiahongnetwork (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <ballofficial.com>, <ball-officialstore.com>, <ballmasonjarz.com>, <ballmasonjarlids.com>, <eballofficial.com>, <ballsofficial.com>, <ballmasonlids.com>, <ballcannlids.com>, <ball-exclusive.com>, <buyballjars.com>, <ball-official.com>, <aballofficial.com>, <ball-distributor.com>, <ball-jarlids.com>, <ball-mason.com>, <ball-masonjarlid.com>, <ball-masonjarlids.com>, <ball-offical.com>, <ball-officials.com>, <ballcanlids.com>, <ballcanningjarlids.com>, <ballcanninglids.com>, <ballids.com>, <balljarlids.com>, <balljaroffcial.com>, <balllids.com>, <balllofficial.com>, <ballmasonjarlidz.com>, <ballofficiall.com>, <ballofficials.com>, <ballstore-official.com>, <buyballcanninglids.com>, <official-ball.com>, <theballofficial.com>, <ball-mason.shop>, <ballsofficial.shop>, <ball-official.shop>, <ball-official.store>, and <ballstore.shop> (the “Disputed Domain Names”), registered with Namesilo, Llc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 2, 2020; the Forum received payment on November 2, 2020.
On November 3, 2020, Namesilo, Llc; confirmed by e-mail to the Forum that the <ballofficial.com>, <ball-officialstore.com>, <ballmasonjarz.com>, <ballmasonjarlids.com>, <eballofficial.com>, <ballsofficial.com>, <ballmasonlids.com>, <ballcannlids.com>, <ball-exclusive.com>, <buyballjars.com>, <ball-official.com>, <aballofficial.com>, <ball-distributor.com>, <ball-jarlids.com>, <ball-mason.com>, <ball-masonjarlid.com>, <ball-masonjarlids.com>, <ball-offical.com>, <ball-officials.com>, <ballcanlids.com>, <ballcanningjarlids.com>, <ballcanninglids.com>, <ballids.com>, <balljarlids.com>, <balljaroffcial.com>, <balllids.com>, <balllofficial.com>, <ballmasonjarlidz.com>, <ballofficiall.com>, <ballofficials.com>, <ballstore-official.com>, <buyballcanninglids.com>, <official-ball.com>, <theballofficial.com>, <ball-mason.shop>, <ballsofficial.shop>, <ball-official.shop>, <ball-official.store>, <ballstore.shop> domain names is registered with Namesilo, Llc; and that Respondent is the current registrant of the names. Namesilo, Llc; has verified that Respondent is bound by the Namesilo, Llc; registration agreement 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 November 9, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 30, 2020 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@ballofficial.com, postmaster@ball-officialstore.com, postmaster@ballmasonjarz.com, postmaster@ballmasonjarlids.com, postmaster@eballofficial.com, postmaster@ballsofficial.com, postmaster@ballmasonlids.com, postmaster@ballcannlids.com, postmaster@ball-exclusive.com, postmaster@buyballjars.com, postmaster@ball-official.com, postmaster@aballofficial.com, postmaster@ball-distributor.com, postmaster@ball-jarlids.com, postmaster@ball-mason.com, postmaster@ball-masonjarlid.com, postmaster@ball-masonjarlids.com, postmaster@ball-offical.com, postmaster@ball-officials.com, postmaster@ballcanlids.com, postmaster@ballcanningjarlids.com, postmaster@ballcanninglids.com, postmaster@ballids.com, postmaster@balljarlids.com, postmaster@balljaroffcial.com, postmaster@balllids.com, postmaster@balllofficial.com, postmaster@ballmasonjarlidz.com, postmaster@ballofficiall.com, postmaster@ballofficials.com, postmaster@ballstore-official.com, postmaster@buyballcanninglids.com, postmaster@official-ball.com, postmaster@theballofficial.com, postmaster@ball-mason.shop, postmaster@ballsofficial.shop, postmaster@ball-official.shop, postmaster@ball-official.store, postmaster@ballstore.shop. Also on November 9, 2020, the 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, the Forum transmitted to the parties a Notification of Respondent Default.
On December 3, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Disputed Domain Names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a manufacturer of aluminum beverage cans and glass canning jars. Complainant has rights in the BALL trademark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 854,806, registered Aug. 13, 1968) (hereinafter referred to as the “BALL Mark”).
Complainant contends that the Disputed Domain Names are confusingly similar to Complainant’s BALL Mark because they each contain the entirety of the BALL Mark, simply adding the dictionary or descriptive wording such as “official,” “jar,” “lids,” “mason jar” and “distributor” as well as the “.com,” “.shop,” and “.store” generic top-level domains (“gTLD”).
Further, Complainant contends that Respondent does not have rights or legitimate interests in the Disputed Domain Names. Complainant has not licensed or permitted Respondent to use the BALL Mark and Respondent is not commonly known by the Disputed Domain Names. Additionally, Respondent does not use the Disputed Domain Names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Complainant states that Respondent uses the many of the domains to divert Internet traffic to websites selling counterfeit versions of Complainant’s products. Moreover, Complainant claims that many of the Disputed Domain Names do not resolve to an active webpage.
Finally, Complainant contends that Respondent registered and is using the Disputed Domain Names in bad faith. Respondent has displayed a pattern of bad faith behavior by registering the 40 Disputed Domain Names in the present case. Respondent also attempts to attract Internet users to its websites for commercial gain by passing off as Complainant and offering counterfeit versions of Complainant’s products for sale.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant holds trademark rights in the BALL Mark, that the Disputed Domain Names are confusingly similar to Complainant’s BALL Mark, that Respondents lack rights or legitimate interests in the Disputed Domain Names, and that Respondents registered and are using the Disputed Domain Names in bad faith.
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 a domain name should be cancelled or transferred:
(1) the Disputed Domain Names registered by Respondent are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and
(3) the Disputed Domain Names have been registered and are 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 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”).
The Panel concludes that Complainant has rights in the BALL Mark based on the registration of the trademark with the USPTO (e.g., Reg. No. 854,806, registered Aug. 13, 1968). Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”)
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Disputed Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show that it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). Here, the Panel holds that Complainant has made out a prima facie case.
Respondent has no rights or legitimate interests in the Disputed Domain Names as Respondent has not provided evidence nor proven that it is commonly known by the Disputed Domain Names, nor has Complainant authorized Respondent to use the BALL Mark. Moreover, Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel finds that, based on the record, the Complainant has demonstrated the existence of Respondent’s bad faith registration and use pursuant to paragraph 4(b) of the Policy.
Moreover, the Panel concludes that Respondent registered and is using the Disputed Domain Names in bad faith based upon Respondent’s pattern of bad faith behavior. Registration of multiple domain names incorporating a complainant’s mark may evidence bad faith pursuant to Policy ¶ 4(b)(ii). See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (“Complainant contends that Respondent is a serial cybersquatter as evidenced by its registering four separate domain names all incorporating Complainant’s USPS mark. Therefore, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(ii).”). Here, the Panel agrees with Complainant that Respondent’s registration of 40 domain names containing the BALL Mark demonstrates a pattern of bad faith registration. Therefore, the Panel, concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(b)(ii).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by 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 <ballofficial.com>, <ball-officialstore.com>, <ballmasonjarz.com>, <ballmasonjarlids.com>, <eballofficial.com>, <ballsofficial.com>, <ballmasonlids.com>, <ballcannlids.com>, <ball-exclusive.com>, <buyballjars.com>, <ball-official.com>, <aballofficial.com>, <ball-distributor.com>, <ball-jarlids.com>, <ball-mason.com>, <ball-masonjarlid.com>, <ball-masonjarlids.com>, <ball-offical.com>, <ball-officials.com>, <ballcanlids.com>, <ballcanningjarlids.com>, <ballcanninglids.com>, <ballids.com>, <balljarlids.com>, <balljaroffcial.com>, <balllids.com>, <balllofficial.com>, <ballmasonjarlidz.com>, <ballofficiall.com>, <ballofficials.com>, <ballstore-official.com>, <buyballcanninglids.com>, <official-ball.com>, <theballofficial.com>, <ball-mason.shop>, <ballsofficial.shop>, <ball-official.shop>, <ball-official.store>, and <ballstore.shop> Disputed Domain Names be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: December 14, 2020
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