Kabushiki Kaisha Hitachi Seisakusho d/b/a Hitachi, Ltd. v. Jimmy Lindberg and 55nord
Claim Number: FA0811001235247
Complainant is Kabushiki Kaisha Hitachi Seisakusho d/b/a Hitachi,
Ltd. (“Complainant”), represented by John L. Krieger, of Lewis and Roca LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hitachi.nu>, registered with Active 24 ASA.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 21, 2008; the National Arbitration Forum received a hard copy of the Complaint on November 21, 2008.
On December 4, 2008, Active 24 ASA confirmed by e-mail to the National Arbitration Forum that the <hitachi.nu> domain name is registered with Active 24 ASA and that Respondent is the current registrant of the name. Active 24 ASA has verified that Respondent is bound by the Active 24 ASA registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 10, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 30, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@hitachi.nu by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 6, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s
<hitachi.nu> domain name is
identical to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <hitachi.nu> domain name.
3. Respondent registered and used the <hitachi.nu> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Kabushiki Kaisha
Respondent registered the disputed <hitachi.nu> domain name on April 10, 2006. The disputed domain name resolves to a website that sells goods that directly compete with Complainant’s consumer electronic goods.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
The Panel finds that Complainant has demonstrated its rights
in the
Respondent’s <hitachi.nu>
domain name contains Complainant’s entire and unaltered
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 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, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
Respondent is not commonly known by the disputed domain name
under Policy ¶ 4(c)(ii). Respondent is listed as “Jimmy Lindberg and 55nord” in the WHOIS domain name
registration information, and Complainant has alleged that Respondent is not
authorized or permitted to use Complainant’s mark in any fashion. See
M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the
respondent was not commonly known by the <cigaraficionada.com> domain
name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence
in the record); see also Coppertown
Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat.
Arb. Forum July 17, 2006) (concluding that the respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the WHOIS information, suggesting that the
respondent was commonly known by the disputed domain name).
Respondent’s
disputed domain name resolves to a website that directly competes with
Complainant by selling consumer electronic goods. The Panel finds that such a competitive use
fails to qualify as 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). See Or.
State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal
services and sale of law-related books under Complainant's name is not a bona
fide offering of goods and services because Respondent is using a mark
confusingly similar to the Complainant's to sell competing goods.”); see also Ameritrade Holdings
Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that
the respondent’s use of the disputed domain name to redirect Internet users to
a financial services website, which competed with the complainant, was not a bona
fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s disputed domain name resolves to a website that sells competitive consumer electronic goods. This is a textbook description of business disruption, and evidences Respondent’s bad faith registration and use under Policy ¶ 4(b)(iii). See Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
Moreover, by registering the identical disputed domain name
and attaching it to a directly competitive website, Respondent has created a
likelihood of confusion for commercial gain as to Complainant’s source and
endorsement of the disputed domain name and resolving commercial website. The Panel finds that this constitutes
evidence of Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv). See TM Acquisition Corp. v.
Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith
where the respondent used the domain name, for commercial gain, to
intentionally attract users to a direct competitor of the complainant); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb.
Forum June 23, 2003) (finding that the respondent’s use of the
<saflock.com> domain name to offer goods competing with the complainant’s
illustrates the respondent’s bad faith registration and use of the domain name,
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hitachi.nu> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: January 16, 2009
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