Trijicon, Inc. v. li ce ping
Claim Number: FA2106001951964
Complainant is Trijicon, Inc. (“Complainant”), represented by Elizabeth Brock of Harness, Dickey & Pierce PLC, Michigan, USA. Respondent is li ce ping (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trijiconsro.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.
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.
Complainant submitted a Complaint to the Forum electronically on June 21, 2021. The Forum received payment on June 21, 2021. The Complaint was received in English.
On June 23, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <trijiconsro.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 June 28, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of July 19, 2021 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@trijiconsro.com. Also on June 28, 2021, the Chinese and English language 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 July 22, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 domain name be transferred from Respondent to Complainant.
Preliminary Issue: Language of Proceeding
As noted, the Registration Agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
The domain name is in English and resolves to an English language website with English pay-per-click links. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be conversant with English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, Complainant has shown that Respondent has been named in another case in which the panel found that Respondent has good command of English and that English was the proper language for the proceeding. See Deciem Beauty Group Inc. v. 李策平 (Li Ce Ping), D2021-0416 (WIPO April 15, 2021).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
Complainant, Trijicon, Inc., manufactures and distributes sighting devices for firearms. Complainant has rights in the TRIJICON and SRO marks based on registrations with the United States Patent and Trademark Office (“USPTO”). Respondent’s <trijiconsro.com> domain name is confusingly similar to Complainant’s TRIJICON and SRO marks.
Respondent lacks rights and legitimate interests in the <trijiconsro.com> domain name as Respondent is not commonly known by the domain name and does not use the domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Respondent hosts a website which features Complainant’s TRIJICON and SRO brand products and pay-per-click links to third parties unrelated to Complainant.
Respondent registered the <trijiconsro.com> domain name in bad faith with actual knowledge of Complainant’s rights in the TRIJICON and SRO marks based on Complainant’s worldwide reputation for scopes and sights. Respondent also uses the domain name in bad faith for commercial gain to host a pay-per-click website displaying stock photos of Complainant’s goods related to the TRIJICON and SRO marks. In similar circumstances a domain name registered by Respondent was ordered to be transferred: Deciem Beauty Group Inc. v. 李策平 (Li Ce Ping), D2021-0416 (WIPO April 15, 2021).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 domain name registered by Respondent is 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 domain name; and
(3) 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 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”).
Complainant has shown that it has rights in the TRIJICON and SRO marks based on registrations with the USPTO (e.g., TRIJICON - Reg. No. 1,390,617, registered Apr. 22, 1986; and SRO - Reg. No. 5,841,132, registered Aug. 20, 2019). The Panel finds Respondent’s <trijiconsro.com> domain name to be confusingly similar to Complainant’s TRIJICON and SRO marks because it fully incorporates both of Complainant’s marks and merely adds the inconsequential generic top-level domain (“gTLD”) “.com”, which may be ignored.
Complainant has established this element.
(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 <trijiconsro.com> domain name was registered on February 25, 2021, by which time Complainant’s TRIJICON and SRO marks had become very well-known. The domain name resolves to a website displaying images of Complainant’s products alongside buttons labelled “Buy OnAmazon [sic]”. When clicked, these links are not directed to Amazon but instead to third party websites unrelated to Complainant, which contain further links and redirects, which Complainant says are likely incurring click-through fees.
These circumstances, coupled 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 domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, 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, the 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 the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the 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 TRIJICON and SRO marks when Respondent registered the <trijiconsro.com> domain name and that Respondent did so in bad faith in order to mislead consumers into believing that they were purchasing Complainant’s TRIJICON and SRO products. This demonstrates bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii).
Complainant has also shown that, by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s TRIJICON and SRO marks as to the source of Respondent’s website and of the goods promoted on its 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.
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 <trijiconsro.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: July 26, 2021
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