TP-Link International Limited v. fateh singh
Claim Number: FA1612001707874
Complainant is TP-Link International Limited (“Complainant”), represented by Heather F. Auyang of LTL Attorneys LLP, California, USA. Respondent is fateh singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tplinkwifinet.us>, 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 15, 2016; the Forum received payment on December 15, 2016.
On December 16, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <tplinkwifinet.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On December 20, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2017 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@tplinkwifinet.us. Also on December 20, 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 January 18, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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.
1. Complainant manufactures and sells computer networking hardware and software on a global level. Complainant uses the TP-LINK mark in association with its business. Complainant registered the TP-LINK mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,175,495, registered Nov. 21, 2006). See Compl., at Attached Annexes 3.1–3.6. Respondent’s <tplinkwifinet.us> is confusingly similar to Complainant’s TP-LINK mark because it uses the mark in its entirety, deleting the hyphen and adding the “.us” country code top level domain (“ccTLD”). Furthermore, Respondent’s <tplinkwifinet.us> adds the descriptive terms “wifi” and “net,” which are representative of Complainant’s products and services.
2. Respondent does not have a legitimate interest in <tplinkwifinet.us>. Respondent is not known by the disputed domain name. Complainant has not authorized or permitted Respondent to use the TP-LINK mark in any respect. Respondent has not made a bona fide offering of goods or services, nor does it have a legitimate non-commercial or fair use of the domain name. Respondent’s <tplinkwifinet.us> merely resolves to an apparent technical support site purportedly associated with Complainant, offering users product assistance and troubleshooting for a fee, seemingly for Respondent’s profit. See Compl., at Attached Annex 4.
3. Respondent registered the <tplinkwifinet.us> domain name in bad faith. The disputed domain name redirects Internet users to a website that appears to be operated by Complainant with advertisements to networking products that appear to be endorsed by Complainant. Respondent’s <tplinkwifinet.us> presumably intends to confuse and misdirect consumers, thereby interfering with Complainant’s business. Respondent is using <tplinkwifinet.us> to generate revenue by passing itself off as an authorized technical support service for Complainant.
1. Respondent did not submit a Response.
1. Respondent’s <tplinkwifinet.us> domain name is confusingly similar to Complainant’s TP-LINK mark.
2. Respondent does not have any rights or legitimate interests in the <tplinkwifinet.us> domain name.
3. Respondent registered or used the <tplinkwifinet.us> domain name 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 (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 manufactures and sells computer networking hardware and software on a global level. Complainant uses the TP-LINK mark in association with its business. Complainant claims it registered the TP-LINK mark with the USPTO (e.g., Reg. No. 3,175,495, registered Nov. 21, 2006). See Compl., at Attached Annexes 3.1–3.6. The general consensus among panels is that USPTO mark registrations are sufficient to show rights to a mark. See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i).); see also Watts Water Technologies Inc. v. Fuzhang Ye / Shenzhen Watts Pipeline Flow Control Ltd., FA 1623722 (Forum July 21, 2015) (“Since Complainant provides evidence of its registration for the trademark WATTS with the Chinese national authority the Panel is satisfied that it has trademark rights in that name”). The Panel finds that Complainant has sufficiently established its rights to the TP-LINK mark.
Moreover, Complainant contends that Respondent’s <tplinkwifinet.us> is confusingly similar to Complainant’s TP-LINK mark because it uses the mark in its entirety, deleting the hyphen and adding the “.us” ccTLD. In Innomed Techs., Inc. v. DRP Servs., the Panel found that hyphens and top-level domains are irrelevant for purposes of the Policy. (FA 221171 (Forum Feb. 18, 2004)). Additionally, in Lockheed Martin Corp. v. Roberson, the Panel held that the ccTLD “.us” does not differentiate the disputed domain name from Complainant’s mark. (FA 323762 (Forum Oct. 19, 2004)). Furthermore, Respondent’s <tplinkwifinet.us> adds the descriptive terms “wifi” and “net,” which are representative of Complainant’s products and services. Panels typically hold that the addition of descriptive terms to a mark that describe a complainant’s products is confusingly similar to the original mark. See Gillette Co. v. RFK Assocs., FA 492867 (Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). The Panel finds that Respondent’s <tplinkwifinet.us> is confusingly similar to Complainant’s TP-LINK mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain
names.”).
Although Complainant does not argue it under Policy ¶ 4(c)(i) it must be found that Respondent does not have rights in a mark identical to the disputed domain name. Prior panels have held that a respondent does not have rights in a mark identical to a respondent’s domain name based on a failure of respondent to submit a response. See Kayak Software Corporation (Delaware Corporation) v. ITlinks.com, FA 1647695 (Forum Dec. 18, 2015) (finding that Respondent did not submit any evidence to satisfy its burden to demonstrate evidence of a trademark on which the disputed domain is based per Policy ¶ 4(c)(i).); HOM INNOVATIONS POUR L’ELEGANCE MASCULINE and HUBER HOLDINGS ASIA Limited v. PHMC GPE, FA 1658722 (Forum March 14, 2016) (finding that Respondent was not the owner or beneficiary of a trade or service mark identical to the disputed domain name under Policy ¶ 4(c)(i), even when Complainant did not argue this point). The Panel finds that Respondent does not have any rights in a mark identical to the disputed domain name under Policy ¶ 4(c)(i).
Complainant argues that Respondent does not have a legitimate interest in <tplinkwifinet.us>. In support of this argument, Complainant asserts that Respondent is not known by the disputed domain name. Complainant avers that it has not authorized or permitted Respondent to use the TP-LINK mark in any respect. WHOIS information associated with this case identifies Respondent as
“fateh singh.” See Compl., at Attached Annexes 1.1–1.2. Panels generally hold that WHOIS information is sufficient to show that a respondent is not known by a disputed domain name without evidence to the contrary under Policy ¶ 4(c)(iii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii).
Furthermore, Complainant maintains that Respondent has not made a bona fide offering of goods or services, nor does it have a legitimate non-commercial or fair use of the domain name. Respondent’s <tplinkwifinet.us> merely resolves to an apparent technical support site, offering users product assistance and troubleshooting for a fee, presumably for Respondent’s profit. See Compl., at Attached Annex 4. Panels have held that respondents who pass themselves off as complainants for financial gain lack rights and legitimate interests to the mark. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”) Therefore, the Panel finds that Respondent lacks legitimate rights and interest in Complainant’s TP-LINK mark under Policy ¶ 4(c)(ii) and ¶ 4(c)(iv).
Complainant declares that Respondent registered the <tplinkwifinet.us> domain name in bad faith. To support its argument, Complainant indicates that Respondent is using <tplinkwifinet.us> to generate revenue by passing itself off as an authorized technical support service for Complainant. The disputed domain name redirects Internet users to a website that appears to be operated by Complainant with advertisements to networking products and support ostensibly endorsed by Complainant. Panels have found that disputed domain names that resolve to webpages appearing to be associated with complainants or being passed off as belonging to complainants evinces bad faith under Policy ¶ 4(b)(iv). See DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding that the respondent’s use of the title “Dodgeviper.com Official Home Page” gave consumers the impression that the complainant endorsed and sponsored the respondent’s website). Based on the information provided by Complainant, the Panel finds that Respondent’s registration and use of <tplinkwifinet.us> constitutes bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tplinkwifinet.us> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: January 24, 2017
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