ALLDATA LLC v. luo fei
Claim Number: FA1907001850789
Complainant is ALLDATA LLC (“Complainant”), represented by Kathryn K. Van Namen of Butler Snow, LLP, Tennessee, USA. Respondent is luo fei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alldatacd.com> (‘the Domain Name’), registered with 1API GmbH.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 2, 2019; the Forum received payment on July 8, 2019.
On July 4, 2019, 1API GmbH confirmed by e-mail to the Forum that the <alldatacd.com> domain name is registered with 1API GmbH and that Respondent is the current registrant of the name. 1API GmbH has verified that Respondent is bound by the 1API GmbH 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 July 10, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 30, 2019 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@alldatacd.com. Also on July 10, 2019, 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 August 5, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 is the owner of the mark ALLDATA for computer and Internet related automotive goods and services registered in the USA with first use recorded as 1988.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s mark incorporating it in full and adding only ‘cd’ designed to confuse customers familiar with the Complainant’s products on CD.
The Respondent does not have any legitimate rights or interests in the Domain Name, is not commonly known by it and has not been authorized by the Complainant.
The Domain Name registered in 2019 has been used for pornography, which is not a bona fide offering of goods or services or a legitimate noncommercial fair use, it is bad faith registration and use per se. It is a registration made in opportunistic bad faith with full knowledge of the Complainant’s rights designed to misdirect Internet users and disrupt the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the mark ALLDATA for computer and Internet related automotive goods and services registered in the USA with first use recorded as 1988.
The Domain Name registered in 2019 has been used for pornography.
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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines the Complainant’s ALLDATA mark (registered in the USA for computer and Internet related automotive products and services with first use in commerce recorded as 1988), the generic term ‘cd ’ and the gTLD “.com”.
The addition of the generic term ‘cd’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms does not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).)
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purposes of the Policy.
Rights or Legitimate Interests
The Respondent has not provided any evidence that it is commonly known by the Domain Name. The Complainant has not authorised the Respondent to use its mark. The use of the Domain Name is commercial and so cannot be legitimate non-commercial use.
The use of a domain name containing an established trademark to resolve to adult orientated material cannot constitute a bona fide use. See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA 1732665 (Forum July 7, 2017).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use by the Respondent of the additional term ‘cd’ reflecting a common way the Complainant has distributed its products shows that the Respondent was aware of the Complainant and its business at the time of registration of the Domain Name. Use of a domain name containing a trademark in relation to a web page hosting adult material is evidence of bad faith registration and use under Policy 4(b)(iii). See Molson Canada 2005 v. JEAN LUCAS/DOMCHARME GROUP, FA 1412001596702 (Forum Feb. 10, 2015). There is, therefore, no need to consider any additional grounds of bad faith. The fact that the Respondent’s web site looks different to the Complainant is not relevant where a complainant’s trademark has been used for adult content.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alldatacd.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 6, 2019
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