Kaisha Hitachi Seisakusho d/b/a
Claim Number: FA0908001282147
Complainant is Kabushiki
Kaisha Hitachi Seisakusho d/b/a
Hitachi Ltd. (“Complainant”), represented by Thao A. Nguyen, of Hitachi America Ltd.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hitachi.pro>, registered with DomainPeople, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On September 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 28, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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:
<hitachi.pro> domain name is identical to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <hitachi.pro> domain name.
3. Respondent registered and used the <hitachi.pro> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Kabushiki Kaisha Hitachi Seisakusho d/b/a
Hitachi, Ltd., offers a wide array of goods and services throughout the world,
such as consumer electronics, information technology, computers, and
semiconductors. Complainant has been
doing business under its
Respondent registered the <hitachi.pro> domain
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.
Panel is satisfied with Complainant’s showing of rights in the HITACHI mark
under Policy ¶ 4(a)(i) through its multiple registrations of the mark with the USPTO
(e.g., Reg. No. 701,266 issued October 29, 1953) and the UAE Ministry of
Economy and Commerce (e.g., Reg. No. 794 issued August 9, 1993). See Am. Int’l Group, Inc. v. Morris,
FA 569033 (Nat. Arb. Forum Dec 6, 2005) (“Complainant
has established rights in the
disputed domain name incorporates Complainant’s
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
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, will 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 Broadcom Corp. v. Ibecom PLC, FA
361190 (Nat. Arb. Forum
Respondent’s <hitachi.pro> domain name resolves to a blank website displaying the message, “hitachi.pro is currently UNDER CONSTRUCTION.” Complainant alleges that Respondent’s failure to make demonstrable preparations to use the disputed domain name in connection with an active website supports the finding that Respondent lacks rights to and legitimate interests in the <hitachi.pro> domain name. Thus, the Panel finds that Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), respectively. See Broadcom Corp. v. Wirth, FA 102713 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to display an “under construction” page did not constitute a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
Furthermore, Complainant contends that Respondent is not
authorized to use its
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Panel finds that it may consider the totality of the circumstances surrounding
the disputed domain name, which was registered on
order to find bad faith registration and use pursuant to Policy ¶ 4(a)(iii), it is not necessary for Respondent to have put the
disputed domain name to any use. The Panel concludes that Respondent’s
failure to make an active use of the <hitachi.pro> domain name for
almost two years is indicative of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).
See Mondich v. Brown, D2000-0004 (WIPO
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.pro> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: October 8, 2009
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