Innovative Office Products, Inc. v. TimXia
Claim Number: FA0912001299090
Complainant is Innovative
Office Products, Inc. (“Complainant”), represented by Damon Neagle, of Design IP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <armslcd.com>, registered with Beijing Innovative Linkage Technology Ltd. d/b/a Dns.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 15, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 17, 2009. The Complaint was submitted in both Chinese and English.
On December 20, 2009, Beijing Innovative Linkage Technology Ltd. d/b/a Dns confirmed by e-mail to the National Arbitration Forum that the <armslcd.com> domain name is registered with Beijing Innovative Linkage Technology Ltd. d/b/a Dns and that Respondent is the current registrant of the name. Beijing Innovative Linkage Technology Ltd. d/b/a Dns has verified that Respondent is bound by the Beijing Innovative Linkage Technology Ltd. d/b/a Dns 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 January 13, 2010, a Chinese language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 2, 2010 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@armslcd.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <armslcd.com> domain name is confusingly similar to Complainant’s LCDARMS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <armslcd.com> domain name.
3. Respondent registered and used the <armslcd.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Innovative Office Products, Inc., designs, markets,
and sells arms and mounts for flat panel monitors, notebooks and tablet PCs. Complainant offers these products through
dealers in the
Respondent, TimXia, registered the <armslcd.com> domain name on October 6, 2007. The disputed domain name resolves to the website of a direct competitor of Complainant in the monitor arm and mount business.
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.
Complainant has registered the LCDARMS.COM mark with the
USPTO (Reg. No. 2,548,610 issued March 12, 2002). Respondent operates in
The <armslcd.com> domain name simply inverts the elements “arms” and “lcd” in Complainant’s LCDARMS.COM mark. Previous panels have found that the inverting of elements in a complainant’s mark is insufficient to adequately distinguish the disputed domain name. See NCRAS Mgmt., LP v. Cupcake City, D2000-1803 (WIPO Feb. 26, 2001) (finding the domain name <nationalrentalcar.com> confusingly similar to the mark NATIONAL CAR RENTAL and holding that “merely inverting the terms of a mark . . . is quite insufficient to dispel consumer confusion; the mark and the resulting domain name are simply too similar to each other”); see also Playboy Enters. v. Movie Name Co., D2001-1201 (WIPO Feb. 26, 2002) (finding the domain name <channelplayboy.com> confusingly similar to the mark THE PLAYBOY CHANNEL). Thus, the Panel concludes that Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent does not have any rights or legitimate interests in the <armslcd.com> domain name. The burden shifts to the respondent to prove it does have rights or legitimate interests when a complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Respondent’s failure to respond to the Complaint allows the Panel to infer 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 Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); 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); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond).
Complainant emphasizes that Respondent is not authorized to use the LCDARMS.COM mark. Respondent failed to offer evidence showing Respondent is commonly known by the <armslcd.com> domain name. Complainant provides the WHOIS information for the record which lists Respondent as “TimXia.” There is no evidence on the record showing Respondent is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent has not established it is commonly known by the <armslcd.com> domain name pursuant to Policy ¶ 4(c)(ii). See 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); 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 uses the <armslcd.com> domain name to resolve to the website of a competitor of Complainant in the monitor arm and mount business. Complainant alleges that Respondent is an agent or employee of the competing company. Complainant alleges that some of the products sold on Respondent’s website infringe upon Complainant’s design patents. The Panel finds Respondent’s use of a confusingly similar disputed domain name to resolve to a website offering competing products is not a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <armslcd.com> domain name resolves to the website of
Complainant’s competitor. Complainant’s
competitor sells similar monitor arms and mounts, some of which, Complainant
argues, infringe upon Complainant’s design patents. Internet users intending to purchase these
products from Complainant, may instead purchase the
arms and mounts from Complainant’s competitors because of Respondent’s use of
the confusingly similar disputed domain name.
Therefore, the Panel finds that Respondent’s use of the disputed domain
name disrupts Complainant’s monitor arm and mount business, which constitutes
bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See
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); see also 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).”).
Complainant alleges that Respondent is an agent or employee
of Complainant’s competitor whose website the disputed domain name resolves
to. The Panel presumes that Respondent
profits from the use of the disputed domain name. Internet users interested in Complainant and
Complainant’s arms and mounts may become confused as to Complainant’s
sponsorship of and affiliation with the disputed domain name, resolving
website, and featured arm and mount products.
Respondent is attempting to profit from this confusion. The Panel finds Respondent’s use of the
disputed domain name constitutes bad faith registration and use under Policy ¶
4(b)(iv). See 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)); see also 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).
The Panel finds the elements of Policy ¶ 4(a)(iii) have been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <armslcd.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: February 23, 2010
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