ICLEEN Entwicklungs-Und Vertriebsanstalt für Umweltprodukte v. tang tara / Bei Jing Rui Bo Mei Jia Shang Mao You Xian Gong Si
Claim Number: FA1610001698587
Complainant is ICLEEN Entwicklungs-Und Vertriebsanstalt für Umweltprodukte (“Complainant”), represented by Gary J. Nelson of Lewis Roca Rothgerber Christie, LLP, California, United States. Respondent is tang tara / Bei Jing Rui Bo Mei Jia Shang Mao You Xian Gong Si (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <iqair-china.com>, registered with HiChina Zhicheng Technology Limited.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 17, 2016; the Forum received payment on October 17, 2016. The Complaint was submitted in both Chinese and English.
On October 18, 2016, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <iqair-china.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the names. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology 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 October 20, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 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@iqair-china.com. Also on October 20, 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 14, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant uses the IQAIR mark in connection with its highly successful line of air purifying units and filters. Complainant has registered the IQAIR mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,343,313, registered Nov. 27, 2007), which demonstrates Complainant’s rights in its mark. The <iqair-china.com> domain name is confusingly similar to Complainant’s mark as it wholly incorporates the mark and merely adds the geographically descriptive term “china,” a hyphen, and the “.com” generic top-level domain (“gTLD”).
ii) Respondent has no rights or legitimate interests in the domain name. Respondent is not commonly known by the domain name, and Respondent does not have permission from Complainant to use its IQAIR mark. Further, 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. Rather, Respondent uses its resolving website to sell Complainant’s goods and to display Complainant’s IQAIR mark and photographs of Complainant’s products.
iii) Respondent registered and is using the domain name in bad faith. First, Respondent uses its domain name to sell goods that are directly competitive with Complainant’s business. Second, Respondent uses a confusingly similar domain name to intentionally misdirect Internet users searching for the website of Complainant to that of Respondent. Finally, because of Respondent’s explicit use of the IQAIR mark and photographs on its resolving website, it is clear that Respondent registered the domain name with actual knowledge of Complainant’s mark and rights therein.
B. Respondent
Respondent has failed to submit a response in this proceeding. The Panel notes that Respondent registered the domain name on October 28, 2008.
Complainant established that it had rights in the mark contained in the disputed domain name. The disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
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."
Panel Note: Language of the Proceedings
The Panel notes that 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.
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 uses the IQAIR mark in connection with its highly successful line of air purifying units and filters. Complainant has registered the IQAIR mark with the USPTO (Reg. No. 3,343,313, registered Nov. 27, 2007), which Complainant contends demonstrates its rights in its mark. The Panel finds that trademark registrations with the USPTO suffice to demonstrate a complainant’s rights in its mark for the purposes of Policy ¶ 4(a)(i), with respect to the geographic disparity of the parties. 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.”). Accordingly, the Panel finds that Complainant has demonstrated its rights in its mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that the <iqair-china.com> domain name is confusingly similar to Complainant’s mark as it wholly incorporates the mark and merely adds the geographically descriptive term “china,” a hyphen, and the “.com” gTLD. Panels have agreed. See AXA China Region Ltd. v. KANNET Ltd., D2000-1377 (WIPO Nov. 29, 2000) (finding that the <axachinaregion.com> domain name “is confusingly similar to the Complainant's trade mark ‘AXA’” because “common geographic qualifiers or generic nouns can rarely be relied upon to differentiate the mark if the other elements of the domain name comprise a mark or marks in which another party has rights”); see also Teradyne, Inc. v. 4Tel Tech., D2000-0026 (WIPO May 9, 2000) (finding that the “addition of a hyphen to the registered mark is an insubstantial change. Both the mark and the domain name would be pronounced in the identical fashion, by eliminating the hyphen"); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). As such, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain
names.”).
Complainant contends that Respondent has no rights or legitimate interests in the domain name. According to Complainant, Respondent is not commonly known by the domain name, and Respondent does not have permission from Complainant to use its IQAIR mark. The Panel notes that the WHOIS information merely lists “tang tara” as registrant and that Respondent has failed to provide any evidence for the Panel’s consideration. As such, the Panel finds no basis in the available record to find Respondent commonly known by the 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).
Complainant argues 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. Rather, Complainant alleges that Respondent uses its resolving website to sell Complainant’s goods and to display Complainant’s IQAIR mark and photographs of Complainant’s products. Panels have held that such use by a respondent does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). 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).”). Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Complainant contends that Respondent uses its domain name to sell goods that are directly competitive with Complainant’s business. Panels have decided that a respondent’s use of a domain name to sell products that are directly competitive 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 MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Complainant asserts that Respondent uses a confusingly similar domain name to intentionally misdirect Internet users searching for the website of Complainant to that of Respondent. Panels have determined that such use of a domain name by a respondent constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website). As such, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Finally, Complainant maintains that because of Respondent’s explicit use of the IQAIR mark and photographs on its resolving website, it is clear that Respondent registered the domain name with actual knowledge of Complainant’s mark and rights therein. Panels have held that a respondent demonstrated bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent was well-aware of the complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Accordingly, the Panel finds that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark, thereby violating Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <iqair-china.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: November 26, 2016
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