Swagelok Company v. lai fuhai / lan fuhai
Claim Number: FA1411001588174
Complainant is Swagelok Company (“Complainant”), represented by Brendon P. Friesen of Mansour Gavin LPA, Ohio, USA. Respondent is lai fuhai / lan fuhai (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <021swagelok.com>, registered with Guangdong JinWanBang Technology Investment Co., Ltd..
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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 3, 2014; the National Arbitration Forum received payment on November 3, 2014. The Complaint was submitted in both Chinese and English.
On November 3, 2014, Guangdong JinWanBang Technology Investment Co., Ltd. confirmed by e-mail to the National Arbitration Forum that the <021swagelok.com> domain name is registered with Guangdong JinWanBang Technology Investment Co., Ltd. and that Respondent is the current registrant of the name. Guangdong JinWanBang Technology Investment Co., Ltd. has verified that Respondent is bound by the Guangdong JinWanBang Technology Investment Co., Ltd. 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 6, 2014, the Forum served the Chinese Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 26, 2014 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@021swagelok.com. Also on November 6, 2014, 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.
On November 9, 2014, Respondent sent a Chinese language email to the National Arbitration Forum, stating “I don’t understand. If you want this domain name, you will need to buy it back from me”.
Having received no formal Response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 9, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sebastian M W Hughes 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 was founded in 1947 and is a well-known developer, manufacturer and distributor of fluid systems products, under the trade mark SWAGELOK (the “Trade Mark”). Complainant is the owner of over 475 registrations worldwide for the Trade Mark, including registrations in China, where Respondent is based. Complainant has achieved substantial sales under the Trade Mark in China. Complainant has had sales offices in China since 1985, and owns and operates a manufacturing plant outside Shanghai.
The domain name is confusingly similar to the Trade Mark. It comprises the Trade Mark in its entirety together with the non-distinctive number “021”.
Respondent has no rights or legitimate interests in the domain name. It is being used in respect of a website (the “Website”) which offers for sale fluid systems products of Complainant’s competitors.
Accordingly, the domain name has been registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to transfer of the Domain Name.
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.
Substantive Elements of the Policy
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 Panel finds that Complainant has rights in the Trade Mark acquired through registration and use which predate the date of registration of the domain name by many decades.
UDRP panels have consistently held that domain names are identical or confusingly similar to a trade mark for purposes of the Policy “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name”.
The domain name comprises the Trade Mark in its entirety together with the number “021” as a suffix. The Panel finds that the addition of the number “021” does not serve to distinguish the domain name from the Trade Mark in any significant way.
The Panel therefore finds that the domain name is confusingly similar to the Trade Mark and holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy.
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, the respondent’s 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) the respondent (as an individual, business, or other organisation) has been commonly known by the domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
There is no evidence that Complainant has authorised, licensed, or permitted Respondent to register or use the domain name or to use the Trade Mark. Complainant has prior rights in the Trade Mark which precede Respondent’s registration of the domain name by decades. The Panel finds on the record that there is therefore a prima facie case that Respondent has no rights or legitimate interests in the domain name, and the burden is thus on Respondent to produce evidence to rebut this presumption.
Respondent has failed to show that it has acquired any trade mark rights in respect of the domain name or that the domain name has been used in connection with a bona fide offering of goods or services.
There has been no evidence adduced to show that Respondent has been commonly known by the domain name.
There has been no evidence adduced to show that Respondent is making a legitimate non-commercial or fair use of the domain name.
The undisputed evidence shows the domain name has been used in respect of the Website, which offers for sale fluid systems products of competitors of Complainant. Such use cannot possibly give rise to rights or legitimate interests.
The Panel finds that Respondent has failed to produce any evidence to establish rights or legitimate interests in the domain name. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.
The Panel has no hesitation in concluding that the domain name has been registered and used in bad faith, under paragraph 4(b)(iv) of the Policy, through the use of the domain name in respect of the Website, which offers for sale fluid systems products of Complainant’s competitors.
The Panel therefore concludes that the domain name has been registered and used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <021swagelok.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: December 23, 2014
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