Delta T. Corporation v. Yang hui
Claim Number: FA1206001449126
Complainant is Delta T. Corporation (“Complainant”), represented by Andrew D. Dorisio of KING & SCHICKLI, PLLC, Kentucky, USA. Respondent is Yang hui (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bigairfans.com>, registered with Xin Net Technology Corporation.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 18, 2012; the National Arbitration Forum received payment on June 18, 2012.
On June 19, 2012, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <bigairfans.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 June 25, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 16, 2012 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@bigairfans.com. Also on June 25, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 24, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 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’s Allegations
Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the following marks:
BIG ASS FANS Reg. No. 2,678,232 registered January 21, 2003
BIG FANS (WITH ASS DESIGN) Reg. No. 4,150,272 registered May 29, 2012
Complainant also owns trademark registrations with China’s State Administration for Industry and Commerce (“SAIC”) for the following marks:
BIG ASS FANS Reg. No. 6,498,485 registered April 7, 2010
BIG ASS FAN Reg. No. 5,159,098 registered March 28, 2009
Complainant uses the aforementioned trademarks to designate its fan products, including ceiling, electric, and ventilating fans, high-volume, low-speed fans specified for commercial and industrial use, soldering and gas lamps, heating applications, and nuclear moderating material, among other products. Complainant owns the <bigassfans.com> domain name, which corresponds to a website that has operated since 2000, bearing Complainant’s BIG ASS FANS mark and provides information and services relating to its products.
Respondent’s <bigairfans.com> domain name resolves to a website that is nearly identical to Complainant’s website. Respondent uses Complainant’s marks, designs, and content and lists its contact information as a United States location and a Chinese location. The <bigairfans.com> domain name is confusingly similar to Complainant’s BIG ASS FANS mark. Respondent has no rights or legitimate interests in the disputed domain name and is not commonly known by the <bigairfans.com> domain name. Respondent does not use the disputed domain name in such a way to demonstrate a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent registered and uses the disputed domain name in bad faith by disrupting Complainant’s business and attracting Internet traffic to its website for commercial gain by using a confusingly similar domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that Respondent registered the <bigairfans.com> domain name on February 19, 2012.
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(e), 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.”).
Preliminary Issue
Complainant’s allegations with respect to the contents of Respondent’s Web site are outside the scope of the UDRP. Potential issues of trademark and copyright infringement of the contents of Web sites are appropriate subject matters for the courts, but cannot be resolved through this Forum.
Complainant claims to own trademark rights in its BIG ASS FANS marks through registration with the USPTO (e.g., Reg. No. 2,678,232 registered January 21, 2003), as well as trademark registrations for its BIG ASS FANS mark with the SAIC (e.g., Reg. No. 6,498,485 registered April 7, 2010). The Panel concludes that, by registering its BIG ASS FANS mark with two international trademark authorities, Complainant has established rights in its mark pursuant to Policy ¶ 4(a)(i). See Hewlett-Packard Dev. Co., L.P. v. Wu Wenbing, FA 1294944 (Nat. Arb. Forum Dec. 31, 2009) (“The Panel finds Complainant has sufficiently established rights in the HP mark . . . through its numerous registrations with many governmental trademark authorities . . . including the State Intellectual Property Office of the People’s Republic of China . . . and the United States Patent and Trademark Office . . .”).
Complainant asserts that the <bigairfans.com> domain name is confusingly similar to its BIG ASS FANS mark. The Panel notes that the disputed domain name contains the middle word “air” rather than “ass”. The Panel finds this change to the disputed domain name to be highly significant since the other two words in the BIG ASS FAN mark appear to be descriptive and the word “Ass” appears to be the dominant portion of the mark. This Panel therefore finds that the <bigairfans.com> domain name not to be confusingly similar to Complainant’s mark.
Thus, Complainant has not satisfied Policy ¶ 4(a)(i)).
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <bigairfans.com> domain name REMAIN WITH Respondent.
David A. Einhorn, Panelist
Dated: August 7, 2012
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