EMC Corporation v. lai rong min
Claim Number: FA1704001728522
Complainant is EMC Corporation (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is lai rong min (“Respondent”), Beijing, China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rackhd.com>, registered with HiChina Zhicheng Technology 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 (in English language) to the Forum electronically on April 24, 2017; the Forum received payment on April 24, 2017. The Complaint was received in English.
On April 25, 2017, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <rackhd.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name. 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 April 28, 2017, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of May 18, 2017 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@rackhd.com. Also on April 28, 2017, 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.
A timely (Chinese language) Response was received and determined to be complete on May 2, 2017.
An additional (English language) submission by Complainant was filed May 8, 2017.
On May 15, 2017, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a company incorporated in the USA in 1979 and is a world leader in data storage, information security, virtualization, analytics, cloud computing, and related products and services. Complainant claims common law or unregistered trademark rights in respect of the mark RACKHD (the “Trademark”), which was launched by Complainant by public announcement dated December 8, 2015. Complainant is the applicant for registration of the Trademark in the USA, under U.S. Ser. No. 86/819,479, filed on November 13, 2015. Complainant has used the Trademark continuously since December 8, 2015 in respect of open source software.
The domain name is confusingly similar to the Trademark.
Respondent has no rights or legitimate interests in the domain name.
Respondent has registered and used the domain name in bad faith.
B. Respondent
Respondent registered the domain name on a “first come, first served” basis and has made no use of the domain name to date and has not sought to sell the domain name.
The domain name is the acronym for the pinyin (Romanized text) of the Chinese characters热爱创客互动 - “Re Ai Chuang Ke Hu” which, according to Respondent, translates into English as “interactive platform for the love of entrepreneurism”.
Complainant did not take any steps to recover the domain name when it was registered in December 2015.
Complainant has engaged in reverse domain name hijacking (“RDNH”).
C. Complainant’s Additional Submissions
The domain name was registered after Complainant’s public announcement of the launch of the Trademark, which public announcement garnered coverage in the Chinese press before Respondent registered the domain name.
Respondent’s explanation of the genesis of the domain name amounts to an attempt to provide after-the-fact justification for the intentional registration of an infringing domain name.
Respondent has engaged in a pattern of registering domain names comprising third party trademarks, including at least two domain names which are identical to the trademarks of Complainant’s competitors in the open software field.
Respondent has failed to adduce any evidence to support a finding of RDNH.
Complainant has established all the elements entitling it to transfer of the domain names.
Complainant requests that the language of the proceeding be English. Respondent requests that the language of the proceeding be Chinese.
Pursuant to Rule 11(a), the Panel determines that Complainant has demonstrated the likely possibility that Respondent is conversant in English. Specifically, Complainant relies upon the English language email correspondence sent to the Forum by Respondent.
The Panel has also taken into account the need to avoid delay and additional costs. In the circumstances, the Panel has decided that (1) it will accept the filing of the Complaint and Complainant’s Additional Submissions in English; (2) it will accept the filing of the Response in Chinese; and (3) it will render this Decision in English.
Substantive Elements of the Policy
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.
The domain name is identical to the Trademark.
Respondent has failed to demonstrate any rights or legitimate interests in the domain name. The undisputed evidence shows that the domain name has never been used.
Respondent does not possess any trademark rights in respect of the domain name or in respect of the Chinese characters 热爱创客互动 or the pinyin text “Re Ai Chuang Ke Hu”.
The Panel finds Respondent’s explanation, absent any supporting evidence, as to the genesis of Respondent’s registration of the domain name, unconvincing.
In all the circumstances, and given in particular the fact the domain name is identical to the Trademark, the Panel has no hesitation in concluding that Respondent’s registration and passive use of the domain name constitutes bad faith registration and use.
The domain name is identical to the Trademark, and it was registered after the public announcement of the launch of the Trademark, which announcement was covered in the Chinese press. Furthermore, Respondent has engaged in a pattern of registering domain names comprising third party trademarks, including competitors of Complainant in the open software field.
In light of the above, Panel does not find Respondent’s assertion that it did not know of Complainant and of its Trademark at the time of registration of the domain name convincing.
RDNH
Respondent has failed to adduce any evidence to demonstrate that Complainant has engaged in RDNH. Respondent’s request for a finding of RDNH is wholly without merit, and is rejected.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rackhd.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: May 29, 2017
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