Dell Inc. v. Kai Hu / Hu Kai
Claim Number: FA1609001693135
Complainant is Dell Inc. (“Complainant”), represented by Elizabeth M. Stafki, Texas, USA. Respondent is Kai Hu / Hu Kai (“Respondent”), Peoples Republic of China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lwyse.com>, registered with West263 International Limited.
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 Panelist in this proceeding.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 9, 2016; the Forum received payment on September 9, 2016. The Complaint was submitted in both Chinese and English.
On September 13, 2016, West263 International Limited confirmed by e-mail to the Forum that the <lwyse.com> domain name is registered with West263 International Limited and that Respondent is the current registrant of the name. West263 International Limited has verified that Respondent is bound by the West263 International 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 September 14, 2016, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of October 4, 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@lwyse.com. Also on September 14, 2016, the Chinese language 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 October 6, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s trademark, Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
Complainant asserts rights obtained through registration and use in the trademark WYSE (the “Trademark”), a trademark used for many years in connection with computer-related products and services, such as cloud client computing. Complainant owns a number of trademark registrations in the U.S. and worldwide, including in China, for the Trademark, including U.S. Reg. No. 1,461,695 (registered on October 20, 1987) and Chinese Reg. No. 687625.
Complainant asserts that the disputed domain name has been used for a website featuring adult-oriented content.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to transfer of the domain name.
Language of the Proceeding
The language of the registration agreement for the disputed domain names is Chinese.
Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement.
Paragraph 11(a) allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
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.
Decision
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.”).
The Panel finds that the Complainant has rights in the Trademark acquired through use and registration which predate the date of registration of the disputed domain name by several years.
This is a clear cut case of typosquatting.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trademark and holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy.
There is no evidence that Complainant has authorized, licensed, or permitted Respondent to register or use the domain name or to use the Trademark. Complainant has prior rights in the Trademark which precede Respondent’s registration of the domain name by decades. The Panel finds on the record that there is therefore a prima facie case that Respondent has no rights or legitimate interests in the domain name, and the burden is thus on Respondent to produce evidence to rebut this presumption.
The Panel finds that Respondent has failed to show, for the purposes of the Policy, that he has acquired any legitimate trademark rights in respect of the domain name or that the domain name has been used in connection with a bona fide offering of goods or services. Neither is Respondent commonly known by the domain name, nor is Respondent making a legitimate non-commercial or fair use of the domain name.
By using the disputed domain name for a website featuring adult-oriented content, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with the Trademark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a product or service on Respondent’s website.
For the foregoing reasons, the Panel concludes that the domain name has been registered and is being used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lwyse.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: October 24, 2016
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