Alticor Inc. v. Huynh Thi Tuyet Hoa
Claim Number: FA2107001955699
Complainant is Alticor Inc. (“Complainant”), represented by Malaina J Weldy of Warner Norcross + Judd LLP, Michigan, USA. Respondent is Huynh Thi Tuyet Hoa (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myphamanway.com>, registered with GoDaddy.com, LLC.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 19, 2021; the Forum received payment on July 19, 2021.
On July 20, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <myphamanway.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 21, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 10, 2021 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@myphamanway.com. Also on July 21, 2021, 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 16, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Alticor Inc., sell cosmetics, skin-care products, hair-care products, and similar products. Complainant has rights in the AMWAY mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 724,606, registered Nov. 28, 1961). The disputed domain name is confusingly similar to Complainant’s mark since it is simply a misspelling of Complainant’s mark, preceded by the generic Vietnamese word “mỹ phẩm,” meaning “cosmetics” in English, and followed by the “.com” generic top-level domain (“gTLD”).
ii) Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the AMWAY mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use because Respondent falsely holds itself out as Complainant’s subsidiary in Vietnam, Amway Vietnam Co., Ltd.
iii) Respondent registered and uses the disputed domain name in bad faith because Respondent passes itself off as a subsidiary or affiliate of Complainant by using the name of an actual subsidiary on the resolving website, presumably to illegitimately profit. Respondent’s conduct creates a false impression that Respondent is an authorized distributor of Complainant’s product. Moreover, Respondent had actual knowledge of Complainant’s rights in the AMWAY mark based on the fame and the uniqueness of the mark.
B. Respondent
Respondent did not submit a response to this proceeding.
1. The disputed domain name was registered on December 3, 2020.
2. Complainant has established rights in the AMWAY mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 724,606, registered Nov. 28, 1961).
3. Respondent uses the name “Amway Vietnam Agents” in the copyright line at the bottom of the disputed domain name’s resolving website. Respondent is passing off as Complainant’s subsidiary.
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 rights in the AMWAY mark through its registration with the USPTO (e.g., Reg. No. 724,606, registered Nov. 28, 1961). Registration of a mark with a national trademark agency is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”). Therefore, the Panel finds Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is confusingly similar to Complainant’s AMWAY mark because it is simply a misspelling of Complainant’s mark, preceded by the generic Vietnamese word “mỹ phẩm,” meaning “cosmetics” in English, and followed by the gTLD “.com.” Complainant contends that “anway” is a common misspelling of AMWAY because “n” and “m” are adjacent to each other on a QWERTY keyboard. Under Policy ¶ 4(a)(i), misspelling a mark by replacing one letter for another which is adjacent to the first on the QWERT keyboard, adding a generic and/or descriptive term, and adding the gTLD “.com,” have all been held insufficient to negate confusing similarity. See WordPress Foundation v. Bernat Lubos, FA 1613444 (Forum May 21, 2015) (finding that the <worspress.org> domain name is confusingly similar to the WORDPRESS mark under Policy ¶ 4(a)(i), stating, “On a standard QWERTY keyboard, the letters ‘s’ and ‘d’ are adjacent. A minor misspelling is not normally sufficient to distinguish a disputed domain name from a complainant’s mark.”); see also MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”); see additionally Miller Brewing Co. v. Domain Active Pty. Ltd., FA 243606 (Forum Apr. 23, 2004) (finding that the <millerbeers.com> domain name was confusingly similar to the complainant’s MILLER mark, because “[t]he addition of a descriptive term that describes Complainant’s business to Complainant’s registered mark, does not remove the domain from the realm of confusing similarity with regard to Policy ¶ 4(a)(i).”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
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”).
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the AMWAY mark. Under Policy ¶ 4(c)(ii), when no response is submitted, relevant WHOIS information may demonstrate that a respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization to use a mark is further evidence that a respondent is not commonly known by the mark. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). The WHOIS information identifies “Huynh Thi Tuyet Hoa” as the registrant of the domain name. Additionally, Complainant asserts that it has not authorized Respondent to use the AMWAY mark. Therefore, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Furthermore, Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent falsely holds itself out as Complainant’s subsidiary in Vietnam, Amway Vietnam Co., Ltd. Passing off as a complainant on the resolving website, using complainant’s mark, does not constitute bona fide offerings of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides screenshots showing that Respondent uses the name “Amway Vietnam Agents” in the copyright line at the bottom of the website. Respondent is passing off as Complainant’s subsidiary, as Complainant has an actual subsidiary called “Amway Vietnam Co., Ltd.” and also uses the name “Amway Vietnam” on its own websites, including its Vietnam website <amway.com.vn>. Therefore, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent passes itself off as a subsidiary or affiliate of Complainant by using the name of an actual subsidiary on the resolving website, presumably to illegitimately profit. Complainant contends that Respondent’s conduct creates a false impression that Respondent is an authorized distributor of Complainant’s product. Passing off and giving off the impression that respondent is endorsed or sponsored by complainant is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding that the respondent’s use of the title “Dodgeviper.com Official Home Page” gave consumers the impression that the complainant endorsed and sponsored the respondent’s website); see also Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business); see additionally Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). As noted above, Complainant provides screenshots of Respondent’s website, on which Respondent holds itself out as “Amway Vietnam” by including the entity name “Amway Vietnam Agents” in the copyright line. Amway Vietnam Co., Ltd is the actual subsidiary of Complainant’s. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <myphamanway.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: August 18, 2021
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