Alticor Inc. v. xiu yu(13013650000)
Claim Number: FA1002001308122
Complainant is Alticor Inc. (“Complainant”), represented by Jeffrey
A. Nelson, of Warner Norcross & Judd LLP,
REGISTRAR
The domain name at issue is <amwaynet.com>, registered with Enom, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 12, 2010. 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 16, 2010, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <amwaynet.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 22, 2010, the Forum served the
Complaint and all Annexes, including a Written Notice of the Complaint, setting
a deadline of March 15, 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@amwaynet.com. Also on
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <amwaynet.com> domain name is confusingly similar to Complainant’s AMWAY mark.
2. Respondent does not have any rights or legitimate interests in the <amwaynet.com> domain name.
3. Respondent registered and used the <amwaynet.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alticor, Inc., is the
owner of the Amway brand. Amway is one
of the world’s largest direct selling companies, with independent businesses in
over 80 countries and sales of over $8.2 billion a year. Complainant owns numerous trademark
registrations with the United States Patent and Trademark Office (“USPTO”) for
its AMWAY mark (e.g., Reg. No.
707,658 issued on
Respondent registered the <amwaynet.com>
domain name on
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 owns over 2,000 trademark registrations around
the world and several with the USPTO for its AMWAY mark (e.g., Reg. No. 707,658 issued on
Complainant argues that the <amwaynet.com> domain name is confusingly similar to its
AMWAY mark. Complainant submits that
Respondent’s disputed domain name contains its entire mark merely adding the
generic term “net” and the generic top level domain (“gTLD”) “.com.” Complainant further submits that it currently
owns ten domain names that combine its AMWAY mark and the generic term “net,”
including its official <amwaynet.com.cn> domain name. The Panel finds that the disputed domain name
is confusingly similar to Complainant’s AMWAY mark under Policy ¶ 4(a)(i) where it contains the registered mark in its entirety
and adds the generic term “net,” as well as the gTLD “.com.” See Arthur
Guinness Son & Co. (
Therefore, the Panel finds that Respondent’s <amwaynet.com> domain name is confusingly similar to Complainant’s AMWAY mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights
or legitimate interests in the <amwaynet.com>
domain name. Complainant is required to
make a prima facie case in support of
these allegations. Once Complainant has
produced a prima facie case the
burden shifts to Respondent to show it has 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 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.”). The Panel finds that
Complainant has produced a prima facie
case. Due to Respondent’s failure to
respond to these proceedings, the Panel may assume Respondent does not have any
rights or legitimate interests in the disputed domain name. See American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Complainant contends that it has not given Respondent
permission to use its AMWAY mark, nor is Respondent commonly known by the
disputed domain name. The WHOIS
information identifies Respondent as the registrant of the <amwaynet.com> domain name, and
Respondent does not offer evidence to show that it is commonly known by the
disputed domain name. Therefore, the
Panel finds that Respondent lacks rights and legitimate interests in the <amwaynet.com> domain name under
Policy ¶ 4(c)(ii).
See Tercent
Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Complainant contends that Respondent is not using its disputed domain name in connection with a bona fide offering of goods or services nor a noncommercial or fair use. Respondent’s website displays information on Complainant’s products and offers those products for sale as though it is affiliated with Complainant. The Panel finds that Respondent’s use of the disputed domain name to attract Internet users to its website where it puts itself out as an authorized seller of Complainant’s products is not a use in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a noncommercial or fair use under Policy ¶ 4(c)(iii). See Caterpillar Inc. v. Huth, FA 169056 (Nat. Arb. Forum Sept. 2, 2003) (“Respondent lacks rights in the disputed domain names because Respondent competes with Complainant by selling Complainant's used parts without a license from Complainant to do so.”); see also National Collegiate Athletic Ass’n v. Halpern, D2000-0700 (WIPO Dec. 10, 2000) (finding that domain names used to sell the complainant’s goods without the complainant’s authority, as well as others’ goods, is not bona fide use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent’s use of the disputed
domain name to sell Complainant’s products without authorization is evidence of
bad faith registration and use that disrupts its business. The Panel finds that Respondent’s use of the <amwaynet.com> domain name to sell
Complainant’s products, which it is not authorized to do, is evidence of bad
faith registration and use under Policy ¶ 4(b)(iii). See Fossil, Inc. v. NAS,
FA 92525 (Nat. Arb. Forum
Complainant further argues that
Respondent is using the confusing similarity between its <amwaynet.com> domain name and
Complainant’s AMWAY mark to attract Internet users to its website for
commercial gain. Complainant contends
that this use is further evidence of bad faith.
The Panel finds that Respondent’s use of a confusingly similar domain
name to attract Internet users to its website where it sells Complainant’s
products without authorization is further evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iv). See Utensilerie Assoc. S.p.A. v. C
& M, D2003-0159 (WIPO Apr. 22, 2003)
(“The contents of the website, offering Usag products, together with the domain
name may create the (incorrect) impression that Respondent is either the
exclusive distributor or a subsidiary of Complainant, or at the very least that
Complainant has approved its use of the domain name.”); see also Hunter Fan Co. v. MSS, FA 98067 (Nat. Arb. Forum
Aug. 23, 2001) (finding bad faith where the respondent used the disputed domain
name to sell the complainant’s products without permission and mislead Internet
users by implying that the respondent was affiliated with the
complainant).
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 <amwaynet.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 6, 2010
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