NSK LTD. v. chdd baboo
Claim Number: FA1610001696661
Complainant is NSK LTD. (“Complainant”), represented by Jeffrey P. Thennisch of Lorenz & Kopf LLP, Michigan, USA. Respondent is chdd baboo (“Respondent”), Algeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nsk-ina-bearings.com>, registered with GoDaddy.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 4, 2016; the Forum received payment on October 4, 2016.
On October 5, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <nsk-ina-bearings.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 October 5, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@nsk-ina-bearings.com. Also on October 5, 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 November 2, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, NSK LTD., uses the NSK mark in conjunction with a wide array of industrial, manufacturing, and automotive vehicle-related components, equipment and parts. Complainant also is a global producer of bearings for use in manufacturing operations. Complainant has rights in the NSK mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 857,857, registered Oct. 1, 1968). Respondent’s domain name <nsk-ina-bearings.com> is identical to Complainant’s NSK mark as the domain name includes the entire NSK mark and adds the term “bearings” and the third-party bearing producer “INA.”
Respondent has no rights or legitimate interests in the <nsk-ina-bearings.com> domain name. Complainant has not authorized Respondent to use the NSK mark. Respondent is not commonly known by the disputed domain name. Further, Respondent’s use of the domain name to redirect to internet users to Respondent’s own commercial web site is not 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’s bad faith is evident from using the disputed domain name to intentionally attempt to confuse and attract internet users for commercial gain through selling products that compete with those offered by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, NSK LTD., uses the NSK mark in conjunction with a wide array of industrial, manufacturing, and automotive vehicle-related components, equipment and parts. Complainant also is a global producer of bearings for use in manufacturing operations. Complainant has rights in the NSK mark based on registration of the mark with the USPTO (e.g., Reg. No. 857,857, registered Oct. 1, 1968). Respondent’s domain name <nsk-ina-bearings.com> is confusingly similar to Complainant’s NSK mark.
Respondent, chdd baboo, registered the <nsk-ina-bearings.com> domain name on November 27, 2015.
Respondent has no rights or legitimate interests in the <nsk-ina-bearings.com> domain name. Complainant has not authorized Respondent to use the NSK mark. Respondent is not commonly known by the disputed domain name. Respondent’s use of the domain name to redirect to internet users to Respondent’s own commercial web site is not 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 is using the <nsk-ina-bearings.com> domain name to intentionally attempt to confuse and attract internet users for commercial gain by using Complainant’s NSF mark to sell products that compete with those offered by Complainant.
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 the NSK mark through registration with the USPTO. See Paisley Park Enters. v. Lawson, FA 384834 (Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Respondent’s domain name <nsk-ina-bearings.com> is confusingly similar to Complainant’s NSK mark under Policy ¶ 4(a)(i) as the domain name includes the entire NSK mark and adds the term “bearings” and the third-party bearing producer “INA” and a top-level domain.
Respondent is not commonly known by the <nsk-ina-bearings.com> domain name under Policy ¶ 4(c)(ii). Complainant has not authorized Respondent to use the NSK mark. The WHOIS information for the <nsk-ina-bearings.com> domain name lists “chdd baboo” as the registrant. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent’s use of the domain name, to redirect to internet users to Respondent’s own competing commercial web site, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii). Respondent’s domain name resolves to a website displaying pictures of bearings which users accessing the website may purchase for various prices. Panels have held that using a confusingly similar domain name to sell goods that compete with a complainant’s is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See j2 Global Canada, Inc. and Landslide Technologies, Inc. v. VIJAY S KUMAR / STRATEGIC OUTSOURCING SERVICES PVT LTD, FA 1647718 (Forum January 4, 2016) (finding that the disputed domain purports to offer for sale goods and services in the field of electronic marketing, which directly overlap with the services covered by Complainant’s registrations and offered by Complainant online, and therefore Respondent does not have rights or legitimate interests through its competing use).
Respondent’s registration and use of the <nsk-ina-bearings.com> domain name to attempt to confuse and attract internet users for commercial gain through selling products that compete with those offered by Complainant is bad faith under Policy ¶ 4(b)(iv). See Dell Inc. v. Innervision Web Solutions, FA 445601 (Forum May 23, 2005) (finding evidence of bad faith under Policy ¶ 4(b)(iv) where the respondent was using the <dellcomputerssuck.com> domain name to divert Internet users to respondent’s website offering competing computer products and services).
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 <nsk-ina-bearings.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 16, 2016
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