Seiko Epson Corporation v. Lavanya Clement
Claim Number: FA1710001756507
Complainant is Seiko Epson Corporation (“Complainant”), represented by Rachel Jacques of Maschoff Brennan, Utah, USA. Respondent is Lavanya Clement (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <epsonprinter.support>, 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 October 31, 2017; the Forum received payment on October 31, 2017.
On November 1, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <epsonprinter.support> 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 November 1, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 21, 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@epsonprinter.support. Also on November 1, 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 November 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, Seiko Epson Corporation, uses the EPSON mark to provide and market products and services. Complainant has rights in the EPSON mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,134,004, registered Apr. 29, 1980). Respondent’s <epsonprinter.support> is identical or confusingly similar as it contains Complainant’s EPSON mark in its entirety, merely adding the descriptive term “printer” along with the generic top level domain (“gTLD”) “.support.”
Complainant has not granted respondent permission or license to use the EPSON mark. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is using the <epsonprinter.support> domain name to divert Internet users to a website where Respondent advertises its own services to consumers that directly compete with those of Complainant. In addition, Respondent is attempting to pass off as Complainant.
Respondent has registered and used the <epsonprinter.support> domain name in bad faith. Respondent is attempting to attract for commercial gain Internet users to Respondent’s website by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the EPSON mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Seiko Epson Corporation, is an international designer, manufacturer, producer, and distributor of high technology products, including printers, scanners, digital cameras, video projectors and related services.
Complainant uses the EPSON mark to provide and market its products and services. Complainant has rights in the EPSON mark based upon registration with the USPTO (e.g. Reg. No. 1,134,004, registered Apr. 29, 1980). Respondent’s <epsonprinter.support> is confusingly similar to Complainant’s EPSON mark.
Respondent, Lavanya Clement, created the <epsonprinter.support> domain name on Dec. 9, 2015.
Respondent does not have rights or legitimate interests in the <epsonprinter.support> domain name. Respondent is using the <epsonprinter.support> domain name to divert Internet users to a website where Respondent advertises its own services to consumers that directly compete with those of Complainant. Respondent attempts to pass off as Complainant’s technical support provider.
Respondent has registered and used the <epsonprinter.support> 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 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 EPSON mark under Policy ¶ 4(a)(i) through registration with the USPTO. Respondent’s <epsonprinter.support> is confusingly similar to the EPSON mark as it contains the mark in its entirety and adds the descriptive terms “printer” and the gTLD “.com.”
Respondent has no rights or legitimate interests in <epsonprinter.support>. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the EPSON. The WHOIS information lists the registrant of the domain name as “Lavanya Clement.” See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Respondent has failed to use the <epsonprinter.support> domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is using the <epsonprinter.support> domain name to promote and advertise services that compete directly with those of Complainant. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).”). Further, Respondent is attempting to pass off as Complainant. See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (Passing off does not constitute 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)).
Respondent registered and uses the <epsonprinter.support> domain name in bad faith under Policy ¶ 4(b)(iv) because Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s own website by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the content thereon. See CAN Financial Corporation v. William Thomson / CAN Insurance, FA 1541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Respondent also attempts to pass off as Complaint which is bad faith.
Respondent registered the <epsonprinter.support> domain name with actual knowledge of Complainant’s mark, thereby supporting a finding of bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA 1591796 (Forum Jan. 7, 2015) (“Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”).
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 <epsonprinter.support> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 1, 2017
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