Devicom International, Inc. v. Lin Ba Li / LinBaLi
Claim Number: FA1607001685021
Complainant is Devicom International, Inc. (“Complainant”), represented by Robert J. Lauson of Lauson & Tarver LLP, California, United States. Respondent is Lin Ba Li / LinBaLi (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sneakerhead.online>, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 22, 2016; the Forum received payment on July 22, 2016.
On July 26, 2016, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <sneakerhead.online> 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 July 28, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 2016 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@sneakerhead.online. Also on July 28, 2016, 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 August 25, 2016, 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.
Language of the Proceedings
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant registered its SNEAKERHEAD mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,153,871, registered June 5, 2012), which demonstrates Complainant’s rights in its mark. The <sneakerhead.online> domain is identical to Complainant’s mark, save for the affixation of the “.online” generic top-level domain (“gTLD”).
Respondent is using the <sneakerhead.online> domain to sell products that are directly competitive with Complainant’s business.
Respondent registered and is using the domain in bad faith. Respondent’s use of the domain to sell athletic shoes, the same service offered by Complainant, is evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). Further, prior to initiating this proceeding, Complainant attempted to contact Respondent by e-mail, USPS, fax, and phone, but no response was received.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Devicom International, Inc., has rights in its SNEAKERHEAD mark through registration with the USPTO (e.g., Reg. No. 4,153,871, registered June 5, 2012). The <sneakerhead.online> domain is identical to Complainant’s mark.
Respondent, Lin Ba Li / LinBaLi, registered the <sneakerhead.online> domain on June 7, 2016.
Respondent is not commonly known by the <sneakerhead.online> domain. Complainant has not authorized Respondent to use its SNEAKERHEAD mark.
Respondent is using the disputed domain to sell products that are directly competitive with Complainant’s business. Respondent’s website has the same look and feel as Complainant’s website.
Respondent registered and is using the <sneakerhead.online> domain in bad faith. Respondent’s use of a domain identical to Complainant’s mark to sell athletic shoes, the same service offered by Complainant, is bad faith under Policy ¶¶ 4(b)(iii) and (iv). Prior to initiating this proceeding, Complainant attempted to contact Respondent by e-mail, USPS, fax, and phone, but no response was received.
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 its SNEAKERHEAD mark under Policy ¶ 4(a)(i) through registration with the USPTO. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (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.”).
Respondent’s <sneakerhead.online> domain is identical to Complainant’s mark under Policy ¶ 4(a)(i), save for the affixation of the “.online” gTLD.
Respondent is not commonly known by the <sneakerhead.online> domain. The WHOIS information lists “Lin BaLi” as the registrant. Complainant has not authorized Respondent to use its SNEAKERHEAD mark.
Respondent is using the <sneakerhead.online> domain to sell products that are directly competitive with Complainant’s business. Respondent’s website has the same look and feel as Complainant’s website. Respondent’s “About Us” page appears to be copied from Complainant’s “About Us” page, and even displays the same customer service telephone number. Panels have held that a respondent lacks rights and legitimate interests where it uses a domain confusingly similar or identical to a complainant’s mark to sell products and/or services that are directly competitive with a complainant’s business. See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent’s registration and use of the identical domain to sell athletic shoes, the same service offered by Complainant, is bad faith under Policy ¶¶ 4(b)(iii) and (iv). Panels have consistently held that a respondent’s use of a domain confusingly similar or identical to a complainant’s mark to sell products and/or services that are in direct competition with a complainant’s business is evidence of bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) because the respondent initially used the disputed domain name to sell educational services that targeted the complainant’s market).
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 <sneakerhead.online> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 6, 2016
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