Qualcomm Incorporated v. ebug lk / djchamike
Claim Number: FA2008001907467
Complainant is Qualcomm Incorporated (“Complainant”), represented by Diana S. Bae of Arent Fox LLP, District of Columbia, United States. Respondent is ebug lk / djchamike (“Respondent”), Sri Lanka.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <qpstflash.com>, registered with NameCheap, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 6, 2020; the Forum received payment on August 6, 2020.
On August 6, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <qpstflash.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the 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 August 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 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@qpstflash.com. Also on August 11, 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 September 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 one of the world’s largest providers of mobile chipsets and related wireless communications technologies. Complainant has common law rights in the QPST mark due its use of the mark in commerce for a number of years. Respondent’s <qpstflash.com> domain name is confusingly similar to Complainant’s QPST mark. Respondent incorporates the mark in its entirety and adds the generic word “flash” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <qpstflash.com> domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize it to use its QPST mark. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a webpage that attempts to pass off as Complainant by mimicking Complainant’s official webpage and displaying its marks and products related to its business.
Respondent registered and used the <qpstflash.com> domain name in bad faith as Respondent’s domain name resolves to a webpage that gives the false impression that Respondent is related to Complainant. Respondent also had actual knowledge of Complainant’s rights in the QPST mark due to its long standing use of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the<qpstflash.com> domain name.
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”).
Complainant claims to have common law rights in the QPST due to its long standing use of the mark in commerce. See loanDepot.com, LLC v. sm goo, FA 1786848 (Forum June 12, 2018) (“Complainant’s demonstration of continuous use in commerce and accompanying promotion and media recognition are adequate to sustain its claim of common law rights in the MELLO and MELLO SOLAR marks.”). Complainant has provided the Panel with various media articles relating to the QPST mark and showing its use in commerce and associated products. The Panel finds that Complainant has adequately shown common law rights in the QPST mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <qpstflash.com> domain name is confusingly similar to Complainant’s QPST mark. Registration of a domain name that contains a mark in its entirety and adds a generic term and gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Starbucks Corporation d/b/a Starbucks Coffee Company v. Waseem A Ali / Micron Web Services, FA 1785616 (Forum June 8, 2018) (finding the <starbucksreal.com> domain name to be confusingly similar to the STARBUCKS mark, as “the addition of the generic term ‘real’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.”). Complainant argues that Respondent incorporates the mark in its entirety and adds the generic word “flash” along with the “.com gTLD. The Panel finds that Respondent’s domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel finds that Complainant has made a prima facie case.
Complainant argues Respondent lacks rights or legitimate interest in the <qpstflash.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the QPST mark or register domain names using Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “ebug Ik / djchamike ebug Ik” and there is no other evidence to suggest that Respondent was authorized to use the QPST mark or was commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a webpage that attempts to pass off as Complainant by mimicking Complainant’s official webpage and displaying its marks and products related to its business. Use of a disputed domain name to resolves to a webpage that displays a complainant’s mark and offers services and products related to that mark is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”). Complainant has provided the Panel with screenshots of Respondent’s <qpstflash.com>domain name’s resolving webpage that shows offers for products related to the QPST mark. The Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and used the <qpstflash.com> domain name in bad faith as Respondent’s domain name resolves to a webpage that gives the false impression that Respondent is related to Complainant in any way. Use of a disputed domain name to create a false impression that respondent is related to a complainant is evidence of bad faith per Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant has provided the Panel with screenshots of Respondent’s <qpstflash.com >domain name’s resolving webpage that shows offers for products related to the QPST mark. This is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant argues that Respondent had knowledge of Complainant’s rights in the QPST mark at the time of registering the <qpstflash.com> domain name. Actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support this assertion, Complainant points to its trademark registrations along with the fact that Respondent impersonates Complainant to further a fraudulent scam. The Panel finds that Respondent did have actual knowledge of Complainant’s right in its mark and registered and uses the mark in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <qpstflash.com> domain name be TRANSFERRED from Respondent to Complainant.
______________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
September 10, 2020
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