Alticor Inc. v. Lanfang Song / SONG LAN FANG
Claim Number: FA1011001359599
Complainant is Alticor Inc. (“Complainant”), represented by Jeffrey A. Nelson of Warner Norcross & Judd LLP, Michigan. Respondent is Lanfang Song / SONG LAN FANG (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amway68.com>, registered with Xin Net Technology Corporation.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 19, 2010; the National Arbitration Forum received payment on December 27, 2010. The Complaint was submitted in both Chinese and English.
On December 27, 2010, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <amway68.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 January 3, 2011, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of January 24, 2011 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@amway68.com. Also on January 3, 2011, the Chinese language Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 25, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <amway68.com> domain name is confusingly similar to Complainant’s AMWAY mark.
2. Respondent does not have any rights or legitimate interests in the <amway68.com> domain name.
3. Respondent registered and used the <amway68.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alticor Inc., is a direct selling company that has marketed its AMWAY brand products for fifty years. Complainant distributes its products and others in more than 80 countries and territories through a network of more than 3 million independent business owners. Complainant’s AMWAY products include personal care, nutrition and wellness, home care, home living, and commercial products. Complainant owns multiple trademark registrations for the AMWAY mark with the United States Patent and Trademark Office (“USPTO”):
Reg. No. 707,656 issued November 29, 1960;
Reg. No. 716,128 issued May 30, 1961;
Reg. No. 716,672 issued June 13, 1961;
Reg. No. 724,606 issued November 28, 1961;
Reg. No. 727,367 issued February 13, 1962;
Reg. No. 847,709 issue April 16, 1968;
Reg. No. 1,232,997 issued March 29, 1983;
Reg. No. 1,545,442 issued June 27, 1988; and
Reg. No. 1,509,790 issued October 25, 1988.
Respondent, Lanfang Song / SONG LAN FANG, registered the <amway68.com> domain name on January 11, 2005. The disputed domain name resolves to a website targeting Complainant’s customers as it displays information about Complainant’s products and offers Complainant’s products for sale.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant owns multiple trademark registrations for the AMWAY mark with the USPTO. The Panel finds that evidence of trademark registration with the USPTO establishes Complainant’s rights in the AMWAY mark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). The Panel also finds that the lack of trademark registration in the country of Respondent’s residence or business operations is irrelevant as long as the mark is registered in some jurisdiction. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant argues that Respondent’s <amway68.com> domain name is confusingly similar to Complainant’s AMWAY mark because the disputed domain name consists only of Complainant’s mark combined with the number “68” and the generic top-level domain (“gTLD”) “.com.” The Panel finds that adding numbers to Complainant’s mark does not distinguish the disputed domain name from Complainant’s mark. See Am. Online, Inc. v. garybush co uk, FA 360612 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s domain name is confusingly similar to Complainant’s AOL mark because the disputed domain name incorporates the mark with the mere addition of the nondistinctive number ‘0.’ The addition of the number ‘0’ is insufficient to distinguish the domain name from Complainant’s mark.”); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that adding the suffixes "502" and "520" to the ICQ trademark does little to reduce the potential for confusion). The Panel also finds that the presence of a gTLD does not affect the Policy ¶ 4(a)(i) analysis since it is required in domain names. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). The Panel therefore finds that Respondent’s <amway68.com> domain name is confusingly similar to Complainant’s AMWAY mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
The requirements of Policy ¶ 4(a)(ii) state that Complainant has the burden of putting forth a prima facie case against Respondent before the burden to show rights and legitimate interests transfers to Respondent. The Panel finds that Complainant has presented a sufficient prima facie case in these proceedings. Respondent, however, has defaulted and not presented a Response; the Panel accordingly finds that Respondent has presented no evidence supporting its rights and legitimate interests in the disputed domain name, so the Panel concludes that it has none. See Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). However, the Panel elects to consider the evidence in the record in light of the Policy ¶ 4(c) factors in order to make a complete determination on Respondent’s rights and legitimate interests.
Complainant alleges that it has not authorized Respondent to use the AMWAY mark in a domain name. Complainant also asserts that Respondent is not a subsidiary or affiliate of Complainant, nor one of Complainant’s authorized independent business owners. The WHOIS information for the <amway68.com> domain name identifies the registrant as “Lanfang Song / SONG LAN FANG,” which has no facial connection to the disputed domain name. The Panel thus finds that Respondent is not commonly known by the <amway68.com> domain name and consequently has no rights and legitimate interests under Policy ¶ 4(c)(ii). See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Complainant asserts that Respondent uses the <amway68.com> domain name in connection with its commercial website where Respondent attempts to portray itself as a subsidiary or affiliate of Complainant. Complainant argues that Respondent provides information about Complainant’s products and offers Complainant’s products for sale at the disputed domain name. The Panel finds that such an unauthorized commercial use of the <amway68.com> domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and 4(c)(iii). See G.D. Searle & Co. v. Pelham, FA 117911 (Nat. Arb. Forum Sept. 19, 2002) (finding that because the respondent is using the infringing domain name to sell prescription drugs, the panel could infer that the respondent is using the complainant’s mark to attract Internet users to its website for commercial benefit); see also Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s <amway68.com> domain name resolves to a commercial website selling Complainant’s products. Because Respondent is not an authorized dealer or licensed to sell Complainant’s products, Respondent’s actions constitute competition with Complainant. The Panel accordingly finds that Respondent’s use of the <amway68.com> domain name disrupts Complainant’s business and shows bad faith registration and use according to Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Fossil, Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (transferring the <fossilwatch.com> domain name from the respondent, a watch dealer not otherwise authorized to sell the complainant’s goods, to the complainant).
Complainant asserts that Respondent uses the <amway68.com> domain name in order to host a website which sells Complainant’s products. Complainant argues that Respondent aims to portray itself as a subsidiary or affiliate of Complainant and attempts to attract Complainant’s customers through its use of the AMWAY mark in the disputed domain name and its provision of Complainant’s products. Respondent’s effort to attract and confuse Complainant’s customers for Respondent’s own commercial profit is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Utensilerie Assoc. S.p.A. v. C & M, D2003-0159 (WIPO Apr. 22, 2003) (“The contents of the website, offering Usag products, together with the domain name may create the (incorrect) impression that Respondent is either the exclusive distributor or a subsidiary of Complainant, or at the very least that Complainant has approved its use of the domain name.”); see also Hunter Fan Co. v. MSS, FA 98067 (Nat. Arb. Forum Aug. 23, 2001) (finding bad faith where the respondent used the disputed domain name to sell the complainant’s products without permission and mislead Internet users by implying that the respondent was affiliated with the complainant).
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amway68.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 2, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page