ASSOS of Switzerland GmbH v. Haiyan Wu
Claim Number: FA2210002016314
Complainant is ASSOS of Switzerland GmbH ("Complainant"), Switzerland, represented by David Ewen of Shipman & Goodwin, LLP, United States. Respondent is Haiyan Wu ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <assosus.com>, registered with Name.com, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on October 17, 2022; Forum received payment on October 17, 2022.
On Oct 17, 2022, Name.com, Inc. confirmed by email to Forum that the <assosus.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 18, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 7, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@assosus.com. Also on October 18, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 9, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 is a provider of cycling apparel. Complainant uses ASSOS and related marks in connection with these products, and owns numerous United States trademark registrations for ASSOS in both standard character and stylized form.
Respondent registered the disputed domain name <assosus.com> in August 2022. The domain name is being used for a website that displays Complainant's ASSOS marks and mimics the look and feel of Complainant's website. Respondent's website purports to offer ASSOS-branded products at steep discounts. Complainant alleges that Respondent is attempting to create a false appearance of affiliation with or endorsement by Complainant. Noting the striking resemblance between Respondent's website and the site at issue in ASSOS of Switzerland GmbH v. Yulan Zhou, FA 1994348 (Forum June 13, 2022) (ordering transfer of <assosshop.com>), Complainant alleges that Respondent is likely using the domain name to perpetrate a phishing scheme. Complainant states that Respondent is not commonly known by the domain name, has no relationship with Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <assosus.com> is confusingly similar to its ASSOS mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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."
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <assosus.com> incorporates Complainant's registered ASSOS trademark, adding the geographic term "US" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., ROYER BRANDS INTERNATIONAL SARL v. Mayandican, FA 2004360 (Forum Aug. 17, 2022) (finding <vondutchus.com> confusingly similar to VON DUTCH); ASSOS of Switzerland GmbH v. Yulan Zhou, supra (finding <assosshop.com> confusingly similar to ASSOS). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a website that attempts to pass off as Complainant and offers for sale competing and likely counterfeit or nonexistent products. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., ASSOS of Switzerland GmbH v. Yulan Zhou, supra (finding lack of rights or legitimate interests in similar circumstances); San Antonio Shoe, Inc. v. Sgfgc Ugh et al., FA 1988967 (Forum May 4, 2022) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith can be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith can be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's registered mark and is using it for a website that attempts to pass off as Complainant and offers for sale competing and likely counterfeit or nonexistent products. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., ASSOS of Switzerland GmbH v. Yulan Zhou, supra (finding lack of rights or legitimate interests in similar circumstances); San Antonio Shoe, Inc. v. Sgfgc Ugh et al., supra (same).
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <assosus.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 11, 2022
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