national arbitration forum

 

DECISION

 

LD Products, Inc. v. Hen You Qian

Claim Number: FA0906001266493

 

PARTIES

 

Complainant is LD Products, Inc. (“Complainant”), represented by Matthew M. Thomson, of Kronenberger Burgoyne, LLP, California, USA.  Respondent is Hen You Qian (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

 

The domain name at issue is <www4inkjets.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.

 

PANEL

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on June 3, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 4, 2009.

 

On June 4, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <www4inkjets.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the name.  Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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 June 12, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 2, 2009 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@www4inkjets.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On July 8, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

 

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <www4inkjets.com> domain name is confusingly similar to Complainant’s 4INKJETS mark.

 

2.      Respondent does not have any rights or legitimate interests in the <www4inkjets.com> domain name.

 

3.      Respondent registered and used the <www4inkjets.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

Complainant, LD Products, Inc., sells printer supplies and accessories over the internet.  Complainant has operated since 1999 under its 4INKJETS mark.  Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the 4INKJETS mark (Reg. No. 2,998,115 issued September 20, 2005).

 

Respondent registered the <www4inkjets.com> domain name on November 11, 2007.  The disputed domain name resolves to a website featuring hyperlinks to direct competitors of Complainant.   

 

DISCUSSION

 

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.

 

Identical and/or Confusingly Similar

 

The registration of a mark with the USPTO is sufficient to establish rights in a mark under Policy ¶ 4(a)(i).  Complainant holds a trademark registration with the USPTO for its 4INKJETS mark.  Therefore, the Panel finds that Complainant has established rights in the 4INKJETS mark through its registration with the USPTO.  See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”). 

 

Respondent’s <www4inkjets.com> domain name is confusingly similar to Complainant’s 4INKJETS mark.  The disputed domain name adds the generic prefix “www” and the generic top-level domain “.com.”  The Panel finds that the addition of the generic prefix and top-level domain fails to distinguish the disputed domain name from Complainant’s 4INKJETS mark under Policy ¶ 4(a)(i).  See Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (confusing similarity has been established because the prefix “www” does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS mark); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant has alleged Respondent lacks rights and legitimate interests in the <www4inkjets.com> domain name.  Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  The Panel finds Complainant has made a sufficient prima facie case.  Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name.  However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).  See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).

 

Respondent is using the <www4inkjets.com> domain name to resolve to a website featuring links to Complainant’s competitors.  The Panel finds this use of the confusingly similar disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii).  See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry).

 

Respondent has failed to offer evidence proving Respondent is commonly known by the <www4inkjets.com> domain name.  Complainant asserts that Respondent is not authorized to use the 4INKJETS mark.  The WHOIS information identifies Respondent as “Hen You Qian.”  Therefore, the Panel finds that Respondent has not established rights or legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii).  See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).

 

Furthermore, Respondent engages in typosquatting through its use of the <www4inkjets.com> domain name because the disputed domain includes Complainant’s mark with the addition of the “www” prefix.  The Panel finds that the “www” prefix constitutes typosquatting because it takes advantage of Internet users accidently eliminating the period between the “www” and the domain name.  Therefore, the Panel finds that Respondent’s use of the disputed domain name to redirect Internet users seeking Complainant’s website is further evidence Respondent fails to establish rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).  See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also National Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”). 

 

Therefore, the Panel finds Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent is using the <www4inkjets.com> domain name to resolve to a website featuring hyperlinks to Complainant’s competitors.  The Panel finds the use of the disputed domain name that is confusingly similar to Complainant’s 4INKJETS mark for this purpose constitutes disruption, which is bad faith registration and use under Policy 4(b)(iii).  See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also David Hall Rare Coins v. Texas Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).

 

The Panel presumes Respondent receives commercial gain through click-through fees from its use of the disputed domain name.  Therefore, the Panel finds Respondent is using the disputed domain name to profit from Internet users’ confusion as to Complainant’s affiliation with the disputed domain name and resolving website.  Respondent’s use of the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).

 

Finally, Respondent’s use of the <www4inkjets.com> domain name constitutes typosquatting because the disputed domain name includes a common typing error, omitting a period between the “www” and mark element of the disputed domain name.  Therefore, the Panel finds Respondent’s use of the practice of typosquatting constitutes bad faith registration and use under Policy 4(a)(iii).  See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith); see also Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (“Registering a domain name which entirely incorporates a famous mark with the addition of the “www” prefix evidences not only actual knowledge of a trademark holder’s rights in that mark but an intent to ensnare Internet users who forget to type the period between the “www” and a second-level domain name while attempting to reach Complainant’s URL.”).

 

The Panel finds Complainant has met the requirements of Policy ¶ 4(a)(iii).

 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <www4inkjets.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Bruce E. Meyerson, Panelist

Dated:  July 20, 2009

 

 

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