Griffin Technology, Inc. v. huahuagongzi
Claim Number: FA1503001612122
Complainant is Griffin Technology, Inc. (“Complainant”), represented by Martha B. Allard of Bass, Berry & Sims PLC, Tennessee, USA. Respondent is huahuagongzi (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <griffinsurvivorcases.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 30, 2015; the Forum received payment on March 30, 2015. The Complaint was received in both Chinese and English.
On March 31, 2015, XIN NET TECHNOLOGY CORPORATION confirmed by email to the Forum that the <griffinsurvivorcases.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 April 6, 2015, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of April 27, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@griffinsurvivorcases.com. Also on April 6, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On May 7, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.
A. Complainant
Complainant designs, manufactures, and sells consumer electronics and other products. Complainant has used the GRIFFIN trademark in connection with these products for nearly twenty years, and has used the SURVIVOR mark for almost four years. Complainant states that its marks are registered around the world, and lists several U.S. trademark registrations. Among these are a design plus words mark consisting of the word GRIFFIN in a distinctive typeface enclosed in an oval, and a stylized word mark consisting of the word SURVIVOR in stylized form, the latter for protective cases for portable electronic devices.
Complainant contends that the disputed domain name <griffinsurvivorcases.com>, registered in 2013, is confusingly similar to Complainant’s marks; that Respondent does not have any rights or legitimate interests in the domain name; and that Respondent registered and is using the domain name in bad faith. In support thereof, Complainant states that Respondent is not commonly known by the domain name, and is not authorized or licensed to use Complainant’s marks. Complainant states that the domain name was registered long after Complainant had commenced use of its trademarks and corresponding domain names. Complainant accuses Respondent of registering the disputed domain name for the purpose of diverting consumers seeking Complainant’s website for Respondent’s personal gain, by creating a likelihood of confusion. Complainant states that the website associated with the disputed domain name previously offered phone cases and other accessories that infringed upon Complainant’s marks and may have been counterfeit goods. The website was taken down during Complainant’s investigation.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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 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 notes that the Registration Agreement is written in Chinese, thereby making that the language of the proceedings. 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, concludes that the remainder of the proceedings may be conducted in English. See, e.g., Gianvito Rossi SRL Unipersonale v. Rossi Gianvito / Gianvito Rossi, FA 1601449 (Nat. Arb. Forum Mar. 4, 2015); The One Group LLC v. She Deli, FA 1557538 (Nat. Arb. Forum June 11, 2014).
The disputed domain name combines two of Complainant’s registered marks, adding the generic term “cases” and the “.com” top-level domain. These changes are insufficient to distinguish the domain name from Complainant’s marks. See, e.g., Griffin Technology, Inc. v. fengwubiao / kaixin, FA 1596599 (Nat. Arb. Forum Feb. 3, 2015) (finding <griffinsurvivorshop.com> confusingly similar to GRIFFIN and SURVIVOR marks); Griffin Technology, Inc. v. Xiayu Zhi, FA 1596600 (Nat. Arb. Forum Jan. 23, 2015) (finding <griffinsurvivorstore.com> confusingly similar to G GRIFFIN and SURVIVOR marks).
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s registered marks without authorization, and apparently its sole use has been to promote the sale of infringing and likely counterfeit goods. See, e.g., Griffin Technology, Inc. v. Xiayu Zhi, supra (finding lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site 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 [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name in an attempt to sell infringing and likely counterfeit goods, is indicative of bad faith under paragraph 4(b)(iv). See Griffin Technology, Inc. v. Xiayu Zhi, supra. The Panel finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <griffinsurvivorcases.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 8, 2015
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