Alticor Inc. v. Jiucheng Zhu
Claim Number: FA0612000861139
Complainant is Alticor Inc. (“Complainant”), represented by R.
Scott Keller of Warner Norcross & Judd LLP, 900
Fifth Third Center, 111 Lyon Street, N.W., Grand Rapids, MI, 49503. Respondent is Jiucheng Zhu (“Respondent”), # 52 Yan Jia Li,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amwayau.com>, registered with Network Solutions, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically December 5, 2006; the National Arbitration Forum received a hard copy of the Complaint December 6, 2006.
On December 6, 2006, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <amwayau.com> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. verified that Respondent is bound by the Network Solutions, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 19, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 8, 2007, by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@amwayau.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 15, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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.
A. Complainant makes the following assertions:
1. The domain name that Respondent registered, <amwayau.com>, is confusingly similar to Complainant’s AMWAY mark.
2. Respondent has no rights to or legitimate interests in the <amwayau.com> domain name.
3. Respondent registered and used the <amwayau.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alticor Inc., is a direct selling company that markets and promotes more than 450 products under the AMWAY mark, including personal and home care products. Complainant promotes its products under the AMWAY mark through various media, including promotional literature, direct mailings, brochures, videos, presentations and Internet websites. Complainant owns the registrations for over 1,110 generic top-level domain names and over 600 country-code top-level domain names incorporating the AMWAY mark, including <amway.com> and <amway-au.com>.
In
Complainant holds approximately 2,400 trademark
registrations for the AMWAY mark and variations of the mark with trademark
authorities in some 140 countries. In
Respondent registered the <amwayau.com> domain name November 17, 2003, and uses it to operate a website selling products unrelated to Complainant’s AMWAY mark.
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."
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 will draw such inferences as the Panel 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.”).
Paragraph 4(a) of the Policy requires Complainant to 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.
Complainant submitted extrinsic evidence in this proceeding
of its valid trademark registrations in
The <amwayau.com> domain name contains
Complainant’s entire registered AMWAY mark and merely adds the geographic
identifier “au,” which stands for “
The Panel holds that Complainant satisfied ICANN Policy ¶ 4(a)(i).
Complainant established that it has both rights to and
legitimate interests in the mark contained in its entirety within the disputed
domain name. Moreover, Complainant
alleged that Respondent has no such rights to and legitimate interests in the <amwayau.com> domain name. Complainant must first make a prima facie case
in support of its allegations, and then the burden shifts to Respondent to show
it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL LLC
v. Gerberg, FA 780200 (Nat. Arb. 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.”); see also Document Tech., Inc. v.
Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although
Paragraph 4(a) of the Policy requires that the Complainant prove the presence
of this element (along with the other two), once a Complainant makes out a prima
facie showing, the burden of production on this factor shifts to the
Respondent to rebut the showing by providing concrete evidence that it has rights
to or legitimate interests in the Domain Name.”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <amwayau.com> domain name. See Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where the respondent fails to respond); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June
20, 2000) (“By not submitting a response, Respondent has failed to invoke any
circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any
rights or legitimate interests in the domain name”). However, the Panel
examines the record to determine if the record shows that Respondent has rights
or legitimate interests under Policy ¶ 4(c).
Respondent registered the domain name under the name “Zhu Jiucheng,” and no evidence in the record
suggests that Respondent is commonly known by the <amwayau.com>
domain name. Respondent has not
established rights or legitimate interests in the <amwayau.com>
domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Systems, LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that the respondent was not commonly known by the <coppertown.com> domain
name where no evidence in the record, including the WHOIS information, suggests
that respondent was commonly known by the disputed domain name); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept.
21, 2006) (finding that respondent was not commonly known by
<shoredurometer.com> and <shoredurometer.com> domain names because
the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic
Equip't as the registrant of the disputed domain names and no other evidence in
the record suggested that the respondent was commonly known by the domain names
in dispute).
Respondent’s website at the <amwayau.com> domain name offers products for sale that are wholly unrelated to Complainant. The Panel presumes that Respondent is commercially benefiting from making sales at this website. As a result, Respondent is diverting Internet users seeking Complainant’s AMWAY products to its own website for commercial gain. This is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)).
The Panel holds that Complainant satisfied ICANN Policy ¶ 4(a)(ii).
Complainant further alleges that Respondent registered and
used a domain name containing Complainant’s protected mark in bad faith. Respondent’s website at the <amwayau.com>
domain name offers various products for sale that are unrelated to
Complainant’s products under the AMWAY mark.
In AOL LLC v. iTech Ent, LLC, FA 726227
(Nat. Arb. Forum July 21, 2006), the respondent registered the
<theotheraol.com> and <theotheraol.net> domain names and was using
them to redirect Internet users to its own unrelated website for commercial
gain. The panel held that respondent was
taking advantage of the confusing similarity between the disputed domain names
and the complainant’s AOL mark and found bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). In this case, Respondent is engaging in
similar conduct by promoting products unrelated to Complainant through a
confusingly similar domain name.
Consequently, the Panel finds that Respondent acted in bad faith in
registering and using the disputed domain name, pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA
208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name
that incorporates another's mark with the intent to deceive Internet users in
regard to the source or affiliation of the domain name is evidence of bad
faith.”).
The Panel holds that Complainant satisfied ICANN Policy ¶ 4(a)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amwayau.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: January 29, 2007.
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