Nucor Corporation v. Niuke Steel (Dalian) Co., Ltd. c/o Xin Zheng
Claim Number: FA1002001307008
Complainant is Nucor Corporation (“Complainant”), represented by J. Mark Wilson, of Moore & Van Allen PLLC, North Carolina, USA. Respondent is Niuke Steel (Dalian) Co., Ltd. c/o Xin Zheng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <nucorchina.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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2010. The Complaint was submitted in both Chinese and English. With its Complaint, Complainant also chose to proceed entirely electronically under the new Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”) and the new Forum’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”) by submitted an “opt-in” form available on the Forum’s website.
On February 8, 2010, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <nucorchina.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 February 24, 2010, the Forum served the Chinese language Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 16, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@nucorchina.com. Also on February 24, 2010, the Chinese language Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 24, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 (effective March 1, 2010, but opted-in to by Complainant for this case) "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <nucorchina.com> domain name is confusingly similar to Complainant’s NUCOR mark.
2. Respondent does not have any rights or legitimate interests in the <nucorchina.com> domain name.
3. Respondent registered and used the <nucorchina.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Nucor Corporation, sells steel and steel products throughout the world. Complainant is the largest manufacturer of steel and steel products in North America. Complainant holds trademark registrations with the United State Patent and Trademark Office (“USPTO”) for the NUCOR mark (e.g., Reg. No. 2,320,054 registered on February 22, 2000).
Respondent registered the <nucorchina.com> domain name on February 8, 2010. The disputed domain name redirects Internet users to another website that closely resembles Complainant’s website and displays duplications of Complainant’s NUCOR mark.
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 Complainant established rights in the NUCOR mark through its registration with the USPTO pursuant to Policy ¶ 4(a)(i). 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).”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Respondent’s <nucorchina.com>
domain name is confusingly similar to Complainant’s NUCOR mark. The disputed domain name adds the geographic
word “china” and the generic top-level domain (“gTLD”) “.com” to Complainant’s
mark in the disputed domain name. These changes do not render Respondent’s
disputed domain names distinct from the Complainant’s mark. Therefore, the Panel finds that Respondent’s <nucorchina.com> domain name is
confusingly similar to Complainant’s NUCOR mark pursuant to Policy ¶
4(a)(i). See Gannett Co. v. Chan,
D2004-0117 (WIPO Apr. 8, 2004) (“…it is well established that a domain name
consisting of a well-known mark, combined with a geographically descriptive
term or phrase, is confusingly similar to the mark.”); see also VeriSign, Inc. v. Tandon, D2000-1216 (WIPO Nov. 16, 2000)
(finding confusing similarity between the complainant’s VERISIGN mark and the
<verisignindia.com> and <verisignindia.net> domain names where the
respondent added the word “India” to the complainant’s mark); see also Skype Ltd. v. Sacramento, FA 747948 (Nat. Arb. Forum Aug. 30, 2006)
(“The addition of the geographic term [“Brasil”] does not avoid confusing
similarity pursuant to Policy ¶ 4(a)(i).”).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie case showing Respondent lacks rights or legitimate interests in the disputed domain name. The burden then shifts to Respondent to prove it has rights or legitimate interests in the <nucorchina.com> domain name. The Respondent’s failure to submit a Response may show Respondent lacks rights or legitimate interests in the disputed domain name. 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 Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Although Respondent failed to respond, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the <nucorchina.com> domain name under Policy ¶ 4(c).
The WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. Furthermore, Respondent is not sponsored by or legitimately affiliated with Complainant and Complainant has not given Respondent permission to use Complaint’s mark. With no evidence to the contrary, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); 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).
Respondent’s disputed domain name resolves to a website that closely resembles Complainant’s official website. Respondent’s website requests Internet users “sign in to access all features of this site,” requiring users to provide personal information. Respondent’s website also offers steel and steel products that directly compete with Complainant’s business. The Panel finds that “phishing” for personal information and offering competing services does not constitute 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 Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also 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”).
Furthermore, Respondent’s disputed domain name redirects Internet users to a website that prominently displays Complainant’s NUCOR mark. The Panel concludes Respondent is attempting to pass itself off as Complainant by imitating Complainant’s website, which is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”); 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 Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration and use of the disputed domain name to operate a website that attempts to imitate Complainant’s website and offer steel and steel products in direct competition with Complainant constitutes a disruption of Complainant’s business and constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant); 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).”).
Respondent is using the confusingly similar disputed domain
name in order to intentionally attract Internet users to its website to “phish”
for Internet users’ personal information by creating a strong likelihood of
confusion with Complainant’s official website.
The Panel presumes Respondent then profits by using such information for
fraudulent purposes. Respondent also uses the
confusingly similar disputed domain name to attract Internet users to its
website to offer steel products in direct competition with Complainant, which
is further evidence of bad faith. Therefore,
the Panel finds Respondent’s use of the disputed domain name is evidence of bad
faith registration and use pursuant to Policy ¶ 4(b)(iv). See
Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad
faith registration and use where the respondent was using the
<wellsbankupdate.com> domain name in order to fraudulently acquire the
personal and financial information of the complainant’s customers); see also Capital One Fin. Corp. v.
Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith
registration and use because the respondent used the domain name to redirect
Internet users to a website that imitated the complainant’s website and to
fraudulently acquire personal information from the complainant’s clients); see also Luck's Music
Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000)
(finding that the respondent engaged in bad faith use and registration by using
domain names that were identical or confusingly similar to the complainant’s
mark to redirect users to a website that offered services similar to those
offered by the complainant); see also
Nokia
Corp. v. Private, D2000-1271
(WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy
¶ 4(b)(iv) where the domain name resolved to a website that offered similar
products as those sold under the complainant’s famous mark).
Further, the Panel finds Respondent’s attempt to pass itself off as Complainant constitutes bad faith use and registration pursuant to Policy ¶ 4(a)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); see also Target Brands, Inc. v. JK Internet Servs., FA 349108 (Nat. Arb. Forum Dec. 14, 2004) (finding bad faith because the respondent not only registered Complainant’s famous TARGET mark, but “reproduced . . . Complainant’s TARGET mark . . . [and] added Complainant’s distinctive red bull’s eye [at the domain name] . . . to a point of being indistinguishable from the original.”).
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 <nucorchina.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 7, 2010
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