Kohler Co. v xi long chen
Claim Number: FA1706001737910
Complainant is Kohler Co. (“Complainant”), represented by Paul D. McGrady of Winston & Strawn, Illinois, USA. Respondent is xi long chen (“Respondent”), People’s Republic of China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kohler-corporation.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 June 29, 2017; the Forum received payment on June 30, 2017.
On June 30, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kohler-corporation.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 July 3, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 24, 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@kohler-corporation.com. Also on July 3, 2017, 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 July 27, 2017, 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 is a global retailer and manufacturer of bath products and designs. Complainant uses the KOHLER mark with its business. Complainant registered the KOHLER mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 94,999, registered Jan 20, 1914). Additionally, Complainant registered the KOHLER mark with China’s State Administration of Industry and Commerce (“SAIC”) (e.g., Reg. No. 142982; registered Dec. 25, 1980). Respondent’s <kohler-corporation.com> is confusingly similar to Complainant’s KOHLER mark because it incorporates the mark in its entirety, adding a hyphen, the generic term “corporation,” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in <kohler-corporation.com>. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the KOHLER mark, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”
Respondent registered and is using <kohler-corporation.com> in bad faith. Respondent has made no demonstrable preparations for use of the domain name, thereby showing bad faith. Respondent registered <kohler-corporation.com> with actual knowledge of Complainant and its rights to the KOHLER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Kohler Co., is a global retailer and manufacturer of bath products and designs. Complainant uses the KOHLER mark with its business. Complainant registered the KOHLER mark with the USPTO (e.g. Reg. No. 94,999, registered Jan 20, 1914). Additionally, Complainant registered the KOHLER mark with SAIC (e.g., Reg. No. 142982; registered Dec. 25, 1980). Respondent’s <kohler-corporation.com> is confusingly similar to Complainant’s KOHLER mark.
Respondent, xi long chen, registered <kohler-corporation.com> on March 15, 2017. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”
Respondent does not have rights or legitimate interests in <kohler-corporation.com>.
Respondent registered and is using <kohler-corporation.com> 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(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 has rights in the KOHLER mark through registration with USPTO and SAIC (e.g., Reg. No. 142982; registered Dec. 25, 1980). Generally, “[c]omplainant’s registration of the . . . mark with trademark agencies worldwide, including the USPTO and SAIC, establishes [c]omplainant’s rights in the . . . mark pursuant to Policy ¶ 4(a)(i).” Fossil Group, Inc. v. wuruima wu, FA 1544486 (Forum Mar. 21, 2014).
Respondent’s <kohler-corporation.com> is confusingly similar to Complainant’s KOHLER mark because it incorporates the mark in its entirety, adding a hyphen, the generic term “corporation,” and the “.com” gTLD.
Respondent does not have rights or legitimate interests in <kohler-corporation.com>. Complainant has not authorized or licensed Respondent to use the KOHLER mark, nor is Respondent affiliated with Complainant. Respondent is not commonly known by the disputed domain name. The WHOIS information identifies “xi long chen” as the registrant. “Given the WHOIS contact information for the disputed domain [name], one can infer that [r]espondent . . . is not commonly known by the [disputed domain name] in any derivation.” Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003).
Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!” A respondent’s non-use of a confusingly similar domain name 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). See e.g., Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005). As such, the Panel may conclude that “Respondent’s failure to associate content with its disputed domain name evinces a lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii).” U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Forum Apr. 9, 2007).
Respondent registered and is using the <kohler-corporation.com> domain name in bad faith. Respondent’s <kohler-corporation.com> resolves to an inactive webpage. “Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015). See also Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website contained no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)).
Respondent registered <kohler-corporation.com> with actual knowledge of Complainant and its rights to the KOHLER mark. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014). Therefore, where Respondent had actual knowledge of Complainant's mark when it registered the domain names, the Panel may find bad faith. Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum Apr. 10, 2006).
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 <kohler-corporation.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 4, 2017
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