Lenovo (Beijing) Limited Corporation China v. tom xiong
Claim Number: FA1410001586467
Complainant is Lenovo (Beijing) Limited Corporation China (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is tom xiong (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <leonvo.com>, registered with HiChina Zhicheng Technology Limited.
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 October 23, 2014; the National Arbitration Forum received payment on October 23, 2014. The Complaint was duly received in both English and Chinese.
On October 23, 2014, HiChina Zhicheng Technology Limited confirmed by e-mail to the National Arbitration Forum that the <leonvo.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited 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 3, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 24, 2014 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@leonvo.com. Also on November 3, 2014, 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.
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 3, 2014, 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 Contentions
Complainant uses the mark LENOVO to sell its computer and electronic devices. The mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,149,377, registered Sept. 26, 2006). The <leonvo.com> domain name merely transposes two characters in the LENOVO mark to form a confusingly similar Internet domain name.
Respondent has no rights or legitimate interests in the <leonvo.com> domain name. First, Respondent is not commonly known as this domain name in any fashion. Further, Respondent is not licensed or authorized to use Complainant’s LENOVO mark in any manner. Respondent’s use of the domain name is not bona fide because it is housing a variety of generic hyperlink advertisements, some of which promote competitive products.
Respondent registered and is using the <leonvo.com> domain name in bad faith. First, Respondent is putting the domain name up for sale. Respondent is disrupting Complainant’s LENOVO venture by allowing competing goods to be promoted on the domain name’s website. Further, the presence of such ads as those viewable on the <leonvo.com> domain name evince a likelihood of confusion. Respondent’s behavior in its use of this domain name is tantamount to typosquatting. Furthermore, Respondent’s resolving website shows the mark LENOVO spelled correctly. This constitutes further evidence of bad faith intent.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the <leonvo.com> domain name was registered September 30, 2004.
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.”).
Complainant uses LENOVO to sell its computer and electronic devices. The mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,149,377, registered Sept. 26, 2006). The Panel agrees that Complainant has Policy ¶ 4(a)(i) rights in this LENOVO mark. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Complainant also claims that the <leonvo.com> domain name is confusingly similar to the LENOVO mark under Policy ¶ 4(a)(i). The Panel agrees that by merely transposing two characters in the mark, Respondent has failed to create a distinct domain name and as such is liable for registering a confusingly similar domain name under Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”).
Complainant claims that Respondent is not commonly known as this domain name in any fashion. Complainant also attests that Respondent is not licensed or authorized to use Complainant’s LENOVO mark. The Panel acknowledges that “tom xiong” is listed as the registrant of record for this disputed domain name. The Panel concludes that there is a lack of any evidence suggesting that Respondent is in fact commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant suggests that Respondent’s use of the domain name is not bona fide because it is housing a variety of generic hyperlink advertisements, some of which promote competitive products. The Panel acknowledges that among the ads viewable when entering this domain name are “Buy Sony VIAO” and “Toshiba Laptop Support.” This Panel agrees that promoting the brands of Complainant’s market-competitors is not a use protectable under either Policy ¶ 4(c)(i) or ¶ 4(c)(iii). See, e.g., H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent is disrupting Complainant’s LENOVO venture by allowing competing goods to be promoted on the domain name’s website. The Panel takes notice of the advertising that appears on the domain name’s website. The Panel finds that the nature of these ads is such as to disrupt Complainant’s commercial endeavors in Policy ¶ 4(b)(iii) bad faith. See, e.g., Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant also argues that the presence of such ads as those viewable on the website corresponding to the <leonvo.com> domain name evince a likelihood of confusion. The Panel agrees that the advertising that appears on the websites appears to concern computer devices and other electronic device sellers. This Panel further agrees that such a use creates a Policy ¶ 4(b)(iv) likelihood of confusion as between Complainant and the LENOVO mark and this unaffiliated and unauthorized website hosted by Respondent. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
The Panel also finds that the transposition of two letters in the mark in forming this domain name is an example of typosquatting. As such, this Panel attributes Policy ¶ 4(a)(iii) bad faith to such conduct. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
In addition, the Panel notes that Respondent’s resolving website shows the mark LENOVO spelled correctly. This constitutes further evidence of bad faith intent.
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <leonvo.com> domain name be TRANSFERRED from Respondent to Complainant.
David A; Einhorn, Panelist
Dated: December 17, 2014
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