Haas Automation, Inc. v. WENFEI WANG
Claim Number: FA1609001694539
Complainant is Haas Automation, Inc. (“Complainant”), represented by Farah P. Bhatti of Buchalter Nemer, California, USA. Respondent is WENFEI WANG (“Respondent”), Peoples Republic of China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <haascnc99.com>, registered with Domain.com, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 20, 2016; the Forum received payment on September 20, 2016.
On September 20, 2016, Domain.com, LLC confirmed by e-mail to the Forum that the <haascnc99.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.com, LLC 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 21, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 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@haascnc99.com. Also on September 21, 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 October 19, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 as follows:
Complainant has rights in the HAAS mark as established through registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,573,776, registered May 28, 2002).
Respondent’s <haascnc99.com> domain name is confusingly similar to the HAAS mark as the domain incorporates the HAAS mark and merely adds the generic term “CNC,” meaning “computer numeric control,” and the number “99” to the mark.
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized Respondent to use its mark in the disputed domain name, been licensed to use the disputed domain name, or been identified by the disputed domain name. Respondent’s failure to make an active use of the disputed domain name shows that Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has registered and is using the disputed domain name in bad faith. Respondent registered the domain name with the intent of attracting users to its website for commercial gain. Further, it is inconceivable that Respondent was not aware of Complainant’s rights in the HAAS mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the HAAS mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its HAAS trademark.
Respondent’s <haascnc99.com> domain name is inactive.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant demonstrates its rights in the HAAS mark under Policy ¶ 4(a)(i) through registration of such mark with the USPTO. It is insignificant that Respondent may be located outside of the USPTO’s jurisdiction. See Expedia, Inc. v. Tan, FA 991075 (Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Respondent’s <haascnc99.com> domain name contains Complainant’s entire HAAS trademark followed by the generic term “cnc,” the number “99” and the top-level domain name “.com”. The “cnc” term, short for Computer Numeric Control, is suggestive of Complainant’s business. The domain name’s differences from Complainant’s trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i); the incorporation of the suggestive term “cnc” into the domain only augments any confusion between the two. Therefore, the Panel finds that Respondent’s <haascnc99.com> domain name is confusingly similar to Complainant’s HAAS trademark. See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)). See TripAdvisor, LLC v. Zhong Wan / Wanzhongmedia, FA 1623450 (Forum July 31, 2015) (establishing a confusing similarity between the <tripadviso4.com> domain name and the TRIPADVISOR mark, as the domain name was created by swapping the letter ‘r’ from the mark for the number ‘4’); see also, Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”).
Respondent lacks both rights and legitimate interests in respect of the at‑issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 ( Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
WHOIS information for the disputed domain name lists “WENFEI WANG” as the domain name’s registrant. There is no evidence before the Panel which suggests that notwithstanding the WHOIS record Respondent is nevertheless known by the at-issue domain name. Therefore, the Panel concludes that Respondent is not commonly known by the <haascnc99.com> domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <haascnc99.com> domain name is inactive. Using the confusingly similar domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. Circumstances are present under Policy ¶4(b) and otherwise which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Complainant claims that Respondent registered the <haascnc99.com> domain name with the intent of redirecting internet users to a website where Respondent would sell products that compete with those offered by Complainant. This charge has gone unanswered as Respondent has failed to respond to the Complaint. Respondent’s failure to deny Complainant’s charges which are clearly adverse to Respondent’s interest, spawns an inference that such charges are true and correct. Future use of the domain name to improperly confuse and attract internet users for commercial gain suggests bad faith under Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Significantly, Respondent registered the <haascnc99.com> domain name knowing that Complainant had trademark rights in the HAAS mark. Respondent’s prior knowledge is evident because of the notoriety of Complainant’s trademark as well as Respondent’s use of the suggestive reference to Complainant in the <haascnc99.com> domain name by the inclusion of the term “cnc” therein. Given the forgoing, it is clear that Respondent intentionally registered the at-issue domain name precisely to improperly exploit the domain name’s trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <haascnc99.com> domain name in bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <haascnc99.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 19, 2016
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