Kingston Technology Corporation v. gaoming
Claim Number: FA1005001324077
Complainant is Kingston Technology Corporation (“Complainant”), represented by J.
Andrew Coombs, of J. Andrew Coombs, A Professional Corporation,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <kingston-e.com>, registered with BEIJING INNOVATIVE LINKAGE TECHNOLOGY LTD. d/b/a DNS.COM.CN.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 11, 2010 in both Chinese and English languages.
On May 13, 2010, BEIJING INNOVATIVE LINKAGE TECHNOLOGY LTD. d/b/a DNS.COM.CN confirmed by e-mail to the National Arbitration Forum that the <kingston-e.com> domain name is registered with BEIJING INNOVATIVE LINKAGE TECHNOLOGY LTD. d/b/a DNS.COM.CN and that Respondent is the current registrant of the name(s). BEIJING INNOVATIVE LINKAGE TECHNOLOGY LTD. d/b/a DNS.COM.CN has verified that Respondent is bound by the BEIJING INNOVATIVE LINKAGE TECHNOLOGY LTD. d/b/a DNS.COM.CN 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 May 25, 2010, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of June 14, 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@kingston-e.com by e-mail. Also on May 25, 2010, the 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 June 16, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 "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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<kingston-e.com> domain name
is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <kingston-e.com> domain name.
3. Respondent registered and used the <kingston-e.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Kingston Technology Corporation, is a large,
independent seller of computer memory that was founded in 1987. Complainant offers more than 2,000 memory
products for computers, servers and printers, MP3 players, digital cameras and
mobile phones. Complainant owns numerous
trademark registrations with the United States Patent and Trademark Office
("USPTO") for its
Respondent, gaoming, registered the <kingston-e.com> domain name on April 11, 2010. Respondent’s disputed domain name resolves to a website that appears to be Complainant’s official <kingston.com> domain name.
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 submitted evidence to show that it owns
several trademark registrations with the USPTO for its
Complainant contends that
Respondent’s <kingston-e.com> domain name is confusingly
similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisifed.
Complainant contends that Respondent does not have rights and legitimate interests in the <kingston-e.com> domain name. Complainant must first make a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden of proof shifts to Respondent to show it possesses rights or legitimate interests in the disputed domain name. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”). The Panel finds that Complainant has made a prima facie case in support of its allegations. The Panel further finds that Respondent’s failure to respond to these proceedings allows the Panel to draw such inferences that it deems appropriate in this matter. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). However, the Panel will continue to analyze the elements of Policy ¶ 4(c) to determine whether Respondent possesses rights or legitimate interests in the <kingston-e.com> domain name.
Complainant contends that the WHOIS registration information for the <kingston-e.com> domain name identifies “gaoming” as the registrant of the disputed domain name, and as such Respondent is not commonly known by the disputed domain name. Complainant further asserts that it has not granted Respondent permission to use its mark in any way. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii) where the WHOIS information, as well as all other information on record, does not indicate that Respondent is commonly known by the disputed domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Complainant argues that Respondent is attempting to pass
itself off as Complainant by mimicking Complainant’s official
<kingston.com> domain name.
Complainant submitted screen-shots of its official webpage and the
webpage resolving from the disputed domain name as evidence of Respondent’s
infringing use. Complainant further
argues that Respondent is using the <kingston-e.com>
domain name to sell the unauthorized goods of Complainant and those of
Complainant’s competitors. The Panel
finds that Respondent is not using the disputed domain name in connection with
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) where Respondent has
essentially copied Complainant’s entire webpage and is attempting to pass
itself off as Complainant by selling Complainant’s products as well as similar
products of Complainant’s competitors. See Kmart
of
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent is using the confusingly similar domain name to redirect Internet users to Respondent’s commercial website where Respondent is selling the electronic memory goods of Complainant without authorization, as well as the goods of Complainant’s competitors. Complainant alleges that Respondent’s use interrupts and disrupts Complainant’s online sales and services available to the public. The Panel finds that Respondent’s use of the disputed domain name to divert Internet users seeking Complainant’s products and services to Respondent’s website, where Respondent sells Complainant’s goods without authorization as well as the goods of Complainant’s competitors is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Nat. Arb. Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business).
Complainant further argues that Respondent is intentionally
using the disputed domain name to attract, for commercial gain, Internet users
to Respondent’s website by creating a likelihood of confusion as to the
sponsorship, affiliation and endorsement of the website. Complainant has submitted evidence to show
that Respondent is attempting to pass itself off as Complainant by implementing
a nearly identical webpage layout as found on Complainant’s official
<kingston.com> domain name.
Therefore, the Panel finds that Respondent registered and used the
disputed domain name in bad faith under Policy ¶ 4(a)(i)
by creating a likelihood of confusion as to the ownership and affiliation of
Respondent’s domain name in order to sell unauthorized goods of Complainant and
similar goods of Complainant’s competitors.
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
Hewlett-Packard Co. v. Ali, FA 353151 (Nat. Arb. Forum Dec. 13, 2004) (“Respondent
[used “HP” in its domain name] to benefit from the goodwill associated with
Complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part,
to provide products similar to those of Complainant. Respondent’s practice of diversion, motivated
by commercial gain, constitutes bad faith registration and use pursuant to
Policy ¶ 4(b)(iv).”).
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 <kingston-e.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 18, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum