Alticor Inc. v. ob zk
Claim Number: FA1311001530227
Complainant is Alticor Inc. (“Complainant”), represented by Kenneth A. Coleman of Warner Norcross & Judd LLP, Michigan, USA. Respondent is ob zk (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amwayxsw.com>, registered with GODADDY.COM, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 15, 2013; the National Arbitration Forum received payment on November 18, 2013.
On November 18, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <amwayxsw.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, 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 19, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 9, 2013 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@amwayxsw.com. Also on November 19, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 17, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant is one of the world’s largest direct selling companies. Complainant has been in business since 1959, and it sells its products through a network of more than three million independent business owners (“IBO”). Complainant’s product line includes personal care, nutrition and wellness, home care, home living, and commercial products.
Complainant has rights in the AMWAY mark, used in connection with its direct selling business. Complainant owns trademark registrations for the AMWAY mark with the United States Patent and Trademark Office (“USPTO”) and elsewhere worldwide.
Respondent’s <amwayxsw.com> domain name is confusingly similar to Complainant’s AMWAY mark. The disputed domain name incorporates Complainant’s mark in its entirety while adding the letters “x,” “s,” and “w.” The disputed domain name also adds the generic top-level domain (“gTLD”) “.com”.
Respondent does not have any rights or legitimate interests in the <amwayxsw.com> domain name. Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use its AMWAY mark in any way. Specifically, Respondent is not one of the independent business owners that Complainant uses to distribute its products. Further, the WHOIS record for the disputed domain name lists “ob zk” as the domain name registrant. The <amwayxsw.com> domain name resolves to a website offering rice cookers for sale and hyperlinks to other products that directly compete with Complainant’s products.
Respondent registered and is using the <amwayxsw.com> domain name in bad faith. Respondent is using a confusingly similar domain name to attract and mislead Internet users looking for Complainant and its products for Respondent’s own commercial gain. Respondent is using the <amwayxsw.com> domain name to sell rice cookers, which are products unrelated Complainant’s business. Respondent had knowledge of Complainant’s AMWAY mark prior to registering the <amwayxsw.com> domain name because Complainant’s mark is well-known and famous worldwide.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns USPTO trademark registrations for its AMWAY mark that predate Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Prior to registering the <amwayxsw.com> domain name, Respondent had knowledge of Complainant’s rights in the AMWAY mark.
The at-issue domain name addresses a website offering rice cookers for sale and hyperlinks to other products that compete with Complainant’s products.
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(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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows it has rights in the AMWAY mark via its trademark registrations with various international trademark agencies, including the USPTO. Any one of such registrations is sufficient for Complainant to establish rights in its AMWAY mark under Policy ¶4(a)(i). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (finding that the complainant’s various trademark registrations with agencies around the world, including with the USPTO, serve to secure its rights in the claimed mark under the Policy).
Respondent’s at-issue domain name incorporates Complainant’s mark in its entirety while adding the letters “x,” “s,” and “w” and appending the gTLD “.com” thereto. Respondent’s addition of letters to Complainant’s trademark does not sufficiently differentiate the at-issue domain name from the mark for the purposes of the Policy. Likewise, appending the necessary top level domain name, here “.com” is ineffective in distinguishing the two. Therefore, the Panel finds that Respondent’s <amwayxsw.com> domain name is confusingly similar to Complainant’s AMWAY mark under Policy ¶ 4(a)(i). See Am. Online, Inc. v. Tullo, FA 150811 (Nat. Arb. Forum Apr. 15, 2003) (finding that the <3daol.com> domain name is confusingly similar to the complainant’s AOL mark because “…the addition of the prefix ‘3d’ does nothing to ‘distinguish’ Respondent’s domain name from Complainant’s registered trademarks.”); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with affirmative evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information for the at-issue domain name identifies Respondent as “ob zk.” The record before the Panel contains no evidence that might otherwise tend to prove that Respondent is nevertheless commonly known by the domain name despite the contrary WHOIS indication. The Panel therefore concludes that Respondent is not commonly known by the <amwayxsw.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant claims that the <amwayxsw.com> domain name addresses a website offering rice cookers for sale which are unrelated to Complainant’s business. Respondent also offers products which compete with those of Complainant. Using a confusingly similar domain name to offer goods unrelated to Complainant and/or to offer competing products via hyperlinks or otherwise represents neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Vanderbilt Univ. v. U Inc., FA 893000 (Nat. Arb. Forum Feb. 19, 2007) (holding that the respondent did not have rights or legitimate interests in a domain name where it was redirecting Internet users to its own website promoting the respondent’s books unrelated to the complainant); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).
The at-issue domain name was registered is being used in bad faith. As discussed below, a Policy ¶4(b) bad faith circumstances are present and there is additional non-Policy ¶4(b) evidence from which the Panel may independently conclude under Policy ¶4(a)(iii) that Respondent acted in bad faith in registering and using the at-issue domain name.
Respondent is using a confusingly similar domain name to attract and mislead Internet users looking for Complainant and its products for Respondent’s commercial gain. As mentioned above, Respondent uses the <amwayxsw.com> domain name to market products unrelated to Complainant’s business as well as to market competing products thereby demonstrating bad faith under Policy ¶ 4(b)(iv). Hancock Fabrics, Inc. v. Active Advantage, Inc., FA 204111 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent’s use of the <hancockfabric.com> domain name, a domain name confusingly similar to Complainant’s HANCOCK FABRICS mark, to redirect Internet traffic to a website that provides a selection of jokes demonstrates Respondent’ bad faith use of the disputed domain name because Respondent has created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website, which evidences bad faith registration and use under Policy ¶ 4(b)(iv).”).
Moreover, Respondent had knowledge of Complainant’s AMWAY mark prior to registering the <amwayxsw.com> domain name. Complainant’s mark is so well-known worldwide that it would be inconceivable to find that Respondent was unaware of Complainant’s AMWAY trademark before it registered the domain name. Respondent prior knowledge of Complainant's AMWAY trademark further indicates that Respondent registered the at-issue domain name in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amwayxsw.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 19, 2013
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