Qorvo Us, Inc. v. Asra Chapnic / FMC CORP / Design Alliance / Richard Howells / Xpress Mechanic
Claim Number: FA2007001904639
Complainant is Qorvo Us, Inc. (“Complainant”), represented by Stephen Shaw of Womble Bond Dickinson (US) LLP, North Carolina, USA. Respondent is Asra Chapnic / FMC CORP / Design Alliance / Richard Howells / Xpress Mechanic (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <qorvousa.com>, <qorvoinc.com>, and <qorvo-inc.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com; NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 17, 2020; the Forum received payment on July 17, 2020.
On July 17, 2020, and July 20, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com; NameCheap, Inc. confirmed by e-mail to the Forum that the <qorvousa.com>, <qorvoinc.com>, and <qorvo-inc.com> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com; NameCheap, Inc. and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com; NameCheap, Inc. has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com; NameCheap, 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 July 27, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 2020 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@qorvousa.com, postmaster@qorvoinc.com, postmaster@qorvo-inc.com. Also on July 27, 2020, 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 19, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant designs, manufactures and markets core technologies and radio-frequency systems for mobile, infrastructure, defense/aerospace and the internet-of-things markets.
Complainant holds a registration for the QORVO trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,819,165, registered September 22, 2015.
Respondent registered the <qorvoinc.com> domain name on December 12, 2019, the <qorvousa.com> domain name on December 23, 2019, and the <qorvo-inc.com> domain name on April 18, 2020.
Each of the domain names is confusingly similar to Complainant’s QORVO mark.
Respondent is not licensed to use Complainant’s QORVO mark.
Respondent has no legitimate reason for using the domain names.
Respondent uses the domain names to defraud Complainant’s commercial partners by invoking the names of Complainant’s employees in e-mail messages when applying for credit or placing orders for equipment.
Respondent benefits financially from the operation of its fraudulent scheme.
Respondent does not have rights to or legitimate interests in any of the domain names.
Respondent’s use of the domain names disrupts Complainant’s business.
Respondent knew of Complainant’s rights in the QORVO mark when it registered the domain names.
Respondent registered and uses the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) the same domain names were registered and are being used by Respondent 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:
ii. Respondent has no rights to or legitimate interests in respect of the domain names; and
iii. the domain names were registered and are being used in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see 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”).
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” In the case before us, Complainant alleges that the entities controlling the domain names at issue are effectively controlled by the same person or entity, which is operating under several aliases.
In support of its request that the proceedings involving the three identified domain names be consolidated in a single proceeding in the interests of efficiency, Complainant contends that:
a. the three domain names are closely similar in construction;
b. all of the domain names were registered in the same period of approximately four (4) months from mid-December of 2019 through mid-April of 2020; and
In light of these assertions, none of which Respondent denies, we conclude that it is in the interests of justice and economy that the proceedings involving the three identified domain names be consolidated for all purposes, and we so direct.
Complainant has rights in the QORVO trademark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See, for example, Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum August 4, 2015) (finding that a UDRP complainant’s USPTO registration for a mark sufficiently demonstrated its rights in that mark under Policy ¶ 4(a)(i)).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <qorvousa.com>, <qorvoinc.com>, and <qorvo-inc.com> domain names are confusingly similar to Complainant’s QORVO mark. Each of the domain names incorporates the mark in its entirety, with only the additional of the generic terms “inc” or “usa,” which identify Complainant’s country of origin, plus the generic Top Level domain (“gTLD”) “.com,” and, in one instance, a hyphen. These alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018):
Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the … mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s … mark per Policy ¶ 4(a)(i).
See also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
As to Respondent’s inclusion of a hyphen in one of the domain names, this punctuation mark is of no consequence to our analysis because a hyphen adds nothing to the meaning, nor does it change the phonetic character of, the result.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the <qorvousa.com>, <qorvoinc.com>, and <qorvo-inc.com> domain names, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that there is nothing in the record before us to suggest that Respondent has been commonly known by any of the <qorvousa.com>, <qorvoinc.com>, or <qorvo-inc.com> domain names. In addition, the Complaint asserts, and Respondent does not deny, that Complainant has not licensed Respondent to use the QORVO mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain names variously as “Asra Chapnic / FMC CORP / Design Alliance / Richard Howells / Xpress Mechanic,” none of which resembles the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant alleges, without objection from Respondent, that Respondent uses the challenged domain names to defraud Complainant’s commercial partners by invoking the names of Complainant’s employees in e-mail messages when applying for credit or placing orders for equipment, and that Respondent benefits financially from the operation of its fraudulent scheme. This employment is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in any of the domain names as provided in those subsections of the Policy. See, for example, Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that a respondent’s attempt to pass itself off as a UDRP complainant through e-mail messages employing addresses derived from a domain name that was confusingly similar to the mark of that complainant did not constitute a bona fide offering of goods or services, and that that respondent therefore lacked rights to or legitimate interests in that domain name).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the contested <qorvousa.com>, <qorvoinc.com>, and <qorvo-inc.com> domain names, as alleged in the Complaint, disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain names. See, for example, Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the … domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith [registration and use of the domain name] pursuant to Policy ¶ 4(b)(iii)….
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the QORVO mark when the disputed domain names were registered. This further demonstrates Respondent’s bad faith in registering them.
See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [of a UDRP complainant’s rights in a mark, and therefore a respondent’s bad faith in registering a confusingly similar domain name] through the name used for the domain and the use made of it.
See also Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018):
[T]he fact Respondent registered a domain name that looked identical to the … mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of [the domain name’s] registration.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <qorvousa.com>, <qorvoinc.com>, and <qorvo-inc.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 26, 2020
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