APL
LIMITED, a
Claim Number: FA0907001271513
Complainant is APL
LIMITED, a
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <apl-logistics.com>, registered with Xin Net Technology Corporation.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 30, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 2, 2009.
On July 7, 2009, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <apl-logistics.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 July 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 3, 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@<apl-logistics.com> by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 5, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <apl-logistics.com> domain name is identical to Complainant’s APL LOGISTICS mark.
2. Respondent does not have any rights or legitimate interests in the <apl-logistics.com> domain name.
3. Respondent registered and used the <apl-logistics.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, APL Limited, provides international transportation and logistics services. Complainant has used the APL LOGISTICS mark since 1999. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its APL LOGISTICS mark (i.e., Reg. No. 2,469,563 issued July 17, 2001). Complainant also has registered its mark with multiple other governmental trademark authorities.
Respondent registered the <apl-logistics.com> domain name on May 21, 2009. The disputed domain name resolves to Respondent’s competing website.
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.
Previous panels have found that a complainant establishes
rights in a mark through a registration of the mark with a governmental
trademark authority. Therefore, the
Panel finds that Complainant has established rights under Policy ¶ 4(a)(i) in the APL LOGISTICS mark through its registration of
the mark with the USPTO. See Metro.
Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a
trademark registration adequately demonstrates a complainant’s rights in a mark
under Policy ¶ 4(a)(i)); see also
The Panel finds that Respondent’s <apl-logistics.com> domain name is identical to Complainant’s APL LOGISTICS mark under Policy ¶ 4(a)(i). The disputed domain name contains Complainant’s mark with the addition of a hyphen and the generic top-level domain “.com.” The Panel finds the addition of a hyphen and top-level domain fails to sufficiently distinguish the disputed domain name from Complainant’s APL LOGISTICS mark. See Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant’s RED HAT mark because the mere addition of gTLD was insufficient to differentiate the disputed domain name from the mark).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <apl-logistics.com> domain name. Past panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to the Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <apl-logistics.com> 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 Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); 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’s <apl-logistics.com> domain name resolves to Respondent’s competing website. Complainant alleges Respondent uses the disputed domain name to compete with Complainant and pass itself off as Complainant. The Panel finds Respondent’s use of the identical disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent's “use of the domain name (and Complainant’s mark) to sell products in competition with Complainant demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
The WHOIS information, provided by Complainant, lists Respondent as “Zeng Haibing.” Respondent fails to offer evidence contradicting this information and showing Respondent is commonly known by the <apl-logistics.com> domain name. There is no other evidence on the record showing Respondent is commonly known by the disputed domain name. Complainant further asserts that Respondent is not authorized to use the APL LOGISTICS mark. Therefore, the Panel finds that Respondent is not commonly known by the <apl-logistics.com> 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 Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <apl-logistics.com> domain name resolves to Respondent’s competing website. The Panel finds Respondent’s use of an identical disputed domain name constitutes a disruption of Complainant’s business, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Lambros v. Brown, FA 198963 (Nat. Arb. Forum Nov. 19, 2003) (finding that the respondent registered a domain name primarily to disrupt its competitor when it sold similar goods as those offered by the complainant and “even included Complainant's personal name on the website, leaving Internet users with the assumption that it was Complainant's business they were doing business with”).
The Panel infers that Respondent profits from redirecting
Internet users interested in Complainant to Respondent’s competing
website. Respondent offers similar
services to Complainant, and Complainant alleges Respondent attempts to pass
itself off as Complainant. Respondent is
attempting to profit by creating a likelihood of confusion as to Complainant’s
affiliation with the disputed domain name and resolving website. Therefore, the Panel finds Respondent’s use
of the disputed domain name constitutes bad faith registration and use under
Policy 4(b)(iv).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <apl-logistics.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: August 19, 2009
National
Arbitration Forum
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