QlikTech International AB v. fatemeh ghasemimand
Claim Number: FA1006001330404
Complainant is QlikTech
International AB (“Complainant”), represented by Amy G. Marino, of Williams Mullen, P.C., Virginia,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <qlikviewiran.com>, registered with OnlineNIC, 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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 17, 2010.
On June 18, 2010, OnlineNIC, Inc. confirmed by e-mail to the National Arbitration Forum that the <qlikviewiran.com> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, 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 July 2, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 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@qlikviewiran.com. Also on July 2, 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 July 27, 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 "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 <qlikviewiran.com> domain name is confusingly similar to Complainant’s QLIKVIEW mark.
2. Respondent does not have any rights or legitimate interests in the <qlikviewiran.com> domain name.
3. Respondent registered and used the <qlikviewiran.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, QlikTech International AB, was founded in
Respondent, fatemeh ghasemimand, registered the <qlikviewiran.com> domain name on January 3, 2009. The disputed domain name resolves to a website featuring Complainant’s QLIKVIEW mark, a nearly identical version of Complainant’s design mark, and a list of third-party hyperlinks, some of which resolve to Complainant’s competitors in the technology and software industry.
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 trademark registrations with the USPTO (e.g., Reg. No. 2,873,638 issued August 17, 2004) and OHIM (e.g., Reg. No. 3,831,427 issued May 13, 2004) for its QLIKVIEW mark. The Panel determines that Complainant’s trademark registrations with the USPTO and OHIM are sufficient to establish rights in the QLIKVIEW mark under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority). Moreover, the Panel agrees with the panel in Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001), and holds that the UDRP Policy does not require that the mark be registered in the country in which Respondent operates in order for Complainant to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <qlikviewiran.com>
domain name is confusingly similar to Complainant’s QLIKVIEW mark. The disputed domain name incorporates
Complainant’s entire mark and simply adds the geographic term “
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has contended that Respondent does not have any
rights or legitimate interests in the <qlikviewiran.com> domain
name. Once Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to prove that it does have rights
or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a
sufficient prima facie case. Due to Respondent’s failure to respond to the
Complaint, the Panel may assume 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 Document Techs., Inc. v. Int’l
Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph
4(a) of the Policy requires that the Complainant prove the presence of this
element (along with the other two), once a Complainant makes out a prima
facie showing, the burden of production on this factor shifts to the
Respondent to rebut the showing by providing concrete evidence that it has
rights to or legitimate interests in the Domain Name.”); see also 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).
Complainant alleges that Respondent is not commonly known by the <qlikviewiran.com> domain name. The panels in Coppertown Drive-Thru System, LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006), and Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007), both found that the respective respondents were not commonly known by the disputed domain names based on the WHOIS information, the lack of evidence in the record supporting such a finding, and the complainants’ assertions that the respondents were not authorized to use the complainants’ marks. The WHOIS information in this case identifies the domain name registrant as “fatemeh ghasemimand,” and, similar to both Coppertown Drive-Thru System, LLC and Reese, the Panel determines that the WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. Furthermore, Complainant claims that Respondent was not authorized to utilize Complainant’s QLIKVIEW mark. Respondent has not offered any evidence, and the Panel fails to find any evidence in the record, that would support a finding that Respondent is commonly known by the <qlikviewiran.com> domain name. Therefore, as the previous panels found in Coppertown Drive-Thru System, LLC and Reese, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the <qlikviewiran.com> domain name to resolve to a website containing third-party hyperlinks. Some of the third-party hyperlinks resolve to Complainant’s competitors in the technology and software industry. Respondent’s resolving website also features Complainant’s QLIKVIEW mark and Complainant’s design mark. Previous panels have concluded that a respondent’s use of a disputed domain name to resolve to a website containing third-party hyperlinks, both competing and non-competing, is not evidence of a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name 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 also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a 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 pursuant to Policy ¶ 4(c)(iii)). The Panel agrees with precedent established by past panels and holds that Respondent’s use of the <qlikviewiran.com> domain name is 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 under Policy ¶ 4(c)(iii).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
In Tesco Person Financial Ltd. v. Domain Management Services, FA 877982 (Nat. Arb. Forum Feb. 13, 2007), the panel determined that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii). In St. Lawrence University v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), the panel similarly found that the respondent’s redirection of Internet users to the complainant’s competitors demonstrated that the respondent was engaging in bad faith registration and use under Policy ¶ 4(b)(iii). The Panel finds that the current case is analogous to both Tesco Person Financial Ltd. and St. Lawrence University. Respondent’s <qlikviewiran.com> domain name resolves to a website that contains a directory website comparable to the directory website in the Tesco Person Financial Ltd. case. The directory website features third-party hyperlinks, some of which resolve to Complainant’s competitors in the technology and software business. Internet users interested in Complainant and Complainant’s in-memory association technology and QLIKVIEW software, may be instead redirected to Complainant’s competitors as in the St. Lawrence University case. Respondent’s diversion of Complainant’s potential customers causes a disruption to Complainant’s technology and software business. Therefore, the Panel finds that Respondent’s use of the <qlikviewiran.com> domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iii).
Complainant alleges that Respondent somehow benefits from
its use of the <qlikviewiran.com> domain name to host a hyperlink
directory. The Panel infers that
Respondent receives click-through fees each time an Internet user clicks on one
of the aforementioned hyperlinks. Due to
Respondent’s use of the confusingly similar disputed domain name, the Panel
determines that Internet users may become confused as to Complainant’s
sponsorship of or affiliation with the disputed domain name and resolving
website. The Panel concludes that
Respondent is attempting to profit from this confusion. Therefore, the Panel holds that Respondent’s
use of the <qlikviewiran.com> domain name constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
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 <qlikviewiran.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: August 2, 2010
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