Xiaomi Technology India Pvt. Ltd and Beijing Xiaomi Technology Co. Ltd. v. humaun kabeer shaza / IOS Care
Claim Number: FA1603001665647
Complainant is Xiaomi Technology India Pvt. Ltd and Beijing Xiaomi Technology Co. Ltd. (“Complainant”), represented by Nitin Masilamani of Shardul Amarchand Mangaldas & Co., India. Respondent is humaun kabeer shaza / IOS Care (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xiaomiservicecenterinchennai.com>, registered with GoDaddy.com, LLC.
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 Forum electronically on March 15, 2016; the Forum received payment on March 15, 2016.
On March 15, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <xiaomiservicecenterinchennai.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 March 16, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 5, 2016 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@xiaomiservicecenterinchennai.com. Also on March 16, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 6, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 uses the XIAOMI mark in connection with designing, developing, and providing smartphones, mobile apps, and consumer electronics. Complainant has registered the mark with China’s State Administration For Industry and Commerce (“SAIC”) (e.g., Reg. No. 10272739, registered February 14, 2013), which demonstrates Complainant’s rights in its mark. The <xiaomiservicecenterinchennai.com> domain is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and merely adds the generic terms “service,” “center,” and “in,” the geographic term “chennai,” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <xiaomiservicecenterinchennai.com> domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent uses its disputed domain name to divert Internet users from Complainant’s legitimate website to that of Respondent’s competing website; Respondent does this by attempting to pass itself off as Complainant through use of Complainant’s logo on its resolving website.
Respondent has registered and is using the <xiaomiservicecenterinchennai.com> domain name in bad faith. First, Respondent’s use of the competing domain disrupts and competes with Complainant’s business. Second, by copying Complainant’s website, Respondent uses its domain to intentionally attract users for commercial gain by creating a likelihood of confusion with Complainant’s mark. Third, Respondent has attempted to pass itself off as Complainant through the use of the disputed domain. Finally, Respondent registered the domain with actual knowledge of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Xiaomi Technology India Pvt. Ltd and Beijing Xiaomi Technology Co. Ltd., uses the XIAOMI mark in connection with designing, developing, and providing smartphones, mobile apps, and consumer electronics. Complainant has rights in the XIAOMI mark through registration with China’s SAIC (e.g., Reg. No. 10272739, registered February 14, 2013). The <xiaomiservicecenterinchennai.com> domain is confusingly similar to Complainant’s mark.
Respondent, humaun kabeer shaza / IOS Care, registered the <xiaomiservicecenterinchennai.com> domain name on June 16, 2015. Respondent has no rights or legitimate interests in the disputed domain name. Respondent uses the domain name to divert Internet users from Complainant’s legitimate website to Respondent’s competing website. Respondent attempts to pass itself off as Complainant through use of Complainant’s logo on its resolving website.
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 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.”).
Complainant has rights in the XIAOMI mark under Policy ¶ 4(a)(i) through registration with China’s SAIC. See Norgren, Inc. v. sh ying zhe, FA 1318448 (Nat. Arb. Forum June 2, 2010) (holding that the complainant’s trademark registration with China’s SAIC was sufficient to establish rights in the mark under Policy ¶ 4(a)(i)); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <xiaomiservicecenterinchennai.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i) as it incorporates the mark in its entirety and merely adds the generic terms “service,” “center,” and “in,” the geographic term “chennai,” and the gTLD “.com.”
Respondent has no rights or legitimate interests in the <xiaomiservicecenterinchennai.com> domain name. Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). Respondent has no license or authorization to use Complainant’s mark. The WHOIS information lists “humaun kabeer shaza / IOS Care” as registrant. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent uses the disputed domain name to divert Internet users from Complainant’s legitimate website to Respondent’s competing site. Respondent attempts to pass itself off as Complainant through the use of Complainant’s logo on Respondent’s resolving website. See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
Respondent’s use of the competing domain disrupts and competes with Complainant’s business. Respondent’s resolving website competes with Complainant and uses competing hyperlinks, both of which are evidence of bad faith under Policy ¶ 4(b)(iii). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
By copying Complainant’s website, Respondent uses its domain to intentionally attract users for commercial gain by creating a likelihood of confusion with Complainant’s mark, which is evidence of bad faith under Policy ¶ 4(b)(iv). See Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Respondent’s use of the domain to pass itself off as Complainant constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Mihael, FA 605221 (Nat. Arb. Forum Jan. 16, 2006) (“Complainant asserts,…that soon after the disputed domain name was registered, Respondent arranged for it to resolve to a web site closely resembling a legitimate site of Complainant, called a ‘doppelganger’ (for double or duplicate) page, the purpose of which is to deceive Complainant’s customers into providing to Respondent their login identification, social security numbers, and/or account information and Personal Identification Numbers…. The Panel finds that Respondent’s behavior, as alleged, constitutes bad faith registration and use of the subject domain name pursuant to Policy ¶ 4(a)(iii).”).
Respondent registered the domain with actual knowledge of Complainant’s mark, which shows 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).
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 <xiaomiservicecenterinchennai.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 16, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page