IBM Corporation v. Lin Shi Mo Ban et al.
Claim Number: FA1608001689716
Complainant: IBM Corporation of Armonk, New York, United States of America.
Respondent: huangp of beijing, China.
Lin Shi Mo Ban of Cheng Du, SC, International, CN.
Lin Shi Mo Ban of Cheng Du, China.
REGISTRIES and REGISTRARS
Registries: Dot Tech LLC
Registrars: Chengdu West Dimension Digital Technology Co., Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Jonathan Agmon, as Examiner.
Complainant submitted: August 18, 2016
Commencement: August 18, 2016
Response Date: August 19, 2016
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
LANGUAGE OF THE PROCEEDINGS
Rule 11(a) of the Rules provide that: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Examiner to determine otherwise, having regard to the circumstances of the administrative proceeding.” The Registration Agreement of the disputed domain name is in the Chinese language. The Complainant submitted the Complaint in English. The Respondent submitted his Response in Chinese. Some of the documents in this case are in English and some in Chinese. The disputed domain name uses English characters only. The Respondent filed his response in the Chinese language without raising an issue with the Complainant’s use of the English language. Taking regard of the circumstances of this case, including, but not limited to the language of the Registration Agreement and the proceedings, the fact that the disputed domain name comprise English characters, and that the Respondent will not be prejudiced by the use of the English language, which he clearly understands, the language of this decision will be English.
URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark: (i) for which the Complainant holds a valid national or regional registration and that is in current use; or (ii) that has been validated through court proceedings; or (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.
Determined: Identical and/or Confusingly Similar - Finding for Complainant
Complainant owns several federal trademark registrations for IBM including, among others, Registration No. 1,205,090 in International Classes 1, 7, 9, 16, 37, and 41; Registration No. 1,243,930 in International Class 42; Registration Nos.
1,694,814 and 1,696,454 in International Class 36; and Registration No. 4,181,289 in International Classes 6, 8, 9, 11, 14, 16, 18, 20, 21, 22, 24, 25, 26, 28, 30, 35, and 41. These registrations are conclusive proof of the validity of the IBM mark and of Complainant’s rights in the mark. Complainant owns the following IBM trademark registrations in China: Registration No. 5,744,987 in
International Class 1; Registration No. 5,744,986 in International Class 9; Registration No. 5,744,985 in International Class 14; Registration No. 5,744,984 in International Class 16; Registration No. 5,744,983 in International Class 18;
Registration No. 5,744,982 in International Class 21; Registration No. 5,744,981 in International Class 25; and Registration No. 5,744,980 in International Class 28.
The disputed domain name includes the Complainant's IBM mark in its entirety, together with the gTLD ".tech".
Therefore, the Panel finds that the <ibm.tech> domain name is identical to the IBM mark pursuant to URS Procedure 1.2.6.1.
Determined: Registrant has no legitimate right or interest to the domain name - Finding for Complainant
The Complainant submitted evidence showing that the mark IBM was registered as a trademark and that it is known under this mark. The Respondent did not submit any evidence proving he is known as IBM. The Complainant has not given any permission to the Respondent to use the IBM trademark. The Respondent arguments that the disputed domain name comprises the words “I Help” – “I 帮忙“ (I bangmang) is not supported by evidence and cannot be accepted. The disputed domain name uses English letters and not the letter “I” in English together with two Chinese characters for the word “help”. The disputed domain name is not <I帮忙>.
The Respondent provided that the disputed domain name is to be used in a personal, non-for-profit, web site to help Internet users. The Complainant submitted evidence showing that the disputed domain name was used to direct to a website offering domain name services. Currently, the disputed domain name resolves to a PPC webpage.
The Panel was not persuaded by the arguments made by the Respondent and finds that the Respondent failed to show that it has rights or legitimate interest in the disputed domain name.
Therefore, the Panel finds that the Complaint meets URS requirement of 1.2.6.2.
Determined: The domain name(s) was/were registered and is being used in bad faith - Finding for Complainant
a. Registrant has registered or acquired the domain name
primarily for the purpose of selling, renting or otherwise transferring the
domain name registration to the complainant who is the owner of the trademark
or service mark or to a competitor of that complainant, for valuable
consideration in excess of documented out-of pocket costs directly related to
the domain name; or
b. Registrant has registered the domain name in order to prevent
the trademark holder or service mark from reflecting the mark in a
corresponding domain name, provided that Registrant has engaged in a pattern of
such conduct; or
c. Registrant registered the domain name primarily for the purpose
of disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted
to attract for commercial gain, Internet users to Registrant’s web site or
other on-line location, by creating a likelihood of confusion with the
complainant’s mark as to the source, sponsorship, affiliation, or endorsement
of Registrant’s web site or location or of a product or service on that web site
or location.
The Complainant has satisfied URS 1.2.6.3 (b) since upon registration, the Respondent received notice that the disputed domain name comprised letters representing a trademark registered with the Trademark Clearinghouse. The Respondent must have known of the Complainant's well-known mark when registering the domain name and when using the website under the domain name as parking website with commercial links. The Respondent did not claim otherwise.
The Respondent did not provide evidence to support his allegations that he intends to make bona fides use of the web site, nor evidence to show preparations for such bona fides use. To the contrary, the Complainant provided evidence showing that the Respondent used the disputed domain name to a website offering domain name dealership services.
Since Complainant's trademark was registered long before the disputed domain name was registered and the fact the disputed name currently resolves to an inactive website, and the Respondent's offer to sell the disputed domain name to the Complainant, the conclusion is that the disputed domain name was registered and is being used in bad faith to attract for commercial gain and that Complainant has complied with URS 1.2.6.3 (b).
The Examiner finds that the Complaint was neither abusive nor contained material falsehoods.
After reviewing the parties’ submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the <ibm.tech> domain names be SUSPENDED for the duration of the registration.
Jonathan Agmon, Examiner
Dated: August 23, 2016
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