Alticor Inc. v. yucai sun / sunyucai
Claim Number: FA1011001359598
Complainant is Alticor Inc. (“Complainant”), represented by R. Scott Keller of Warner Norcross & Judd LLP, Michigan, USA. Respondent is yucai sun / sunyucai (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <amway88.net> and <amway99.net>, registered with XIN NET TECHNOLOGY CORPORATION.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically November 19, 2010; the National Arbitration Forum received payment December 23, 2010. The Complaint was submitted in both English and Chinese.
On December 28, 2010, XIN NET TECHNOLOGY CORPORATION confirmed by e-mail to the National Arbitration Forum that the <amway88.net> and <amway99.net> domain names are registered with XIN NET TECHNOLOGY CORPORATION and that Respondent is the current registrant of the names. XIN NET TECHNOLOGY CORPORATION verified that Respondent is bound by the XIN NET TECHNOLOGY CORPORATION registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 6, 2011, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of January 26, 2011, 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@amway88.net and postmaster@amway99.net. Also on January 6, 2011, 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 February 1, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain names that Respondent registered, <amway88.net> and <amway99.net> , are confusingly similar to Complainant’s AMWAY mark.
2. Respondent has no rights to or legitimate interests in the <amway88.net> and <amway99.net> domain names.
3. Respondent registered and used the <amway88.net> and <amway99.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alticor Inc., distributes its AMWAY products through a network of more than 3 million independent business owners in more than 80 countries and territories. Complainant owns multiple trademark registrations for its AMWAY mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,509,790 issued October 25, 1988) that it uses in connection with its products, including: cosmetics, skin care products, hair care products, dietary food supplements, nutritional foods, air and water treatment systems, detergents, all-purpose cleaners, car care products, among others.
Respondent, yucai sun / sunyucai, registered the <amway88.net> domain name May 25, 2006 and the <amway99.net> domain name February 11, 2006. The disputed domain names resolve to websites that feature information about Complainant’s products and that offer Complainant’s products for sale.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 claims rights in its AMWAY mark based on its many registrations of the mark with the USPTO (e.g., Reg. No. 1,509,790 issued October 25, 1988). The Panel finds this to be sufficient evidence of Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i), although Respondent is located in a country outside the USPTO’s jurisdiction. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Complainant asserts that Respondent’s <amway88.net> and <amway99.net> domain names are confusingly similar to Complainant’s AMWAY mark. The disputed domain names both incorporate the entirety of Complainant’s mark and then add a number and the generic top-level domain (“gTLD”) “.net.” The Panel finds that these additions are insufficient to distinguish the disputed domain names from Complainant’s AMWAY mark. See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that adding the suffixes "502" and "520" to the ICQ trademark does little to reduce the potential for confusion); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
Therefore, the Panel finds that, pursuant to Policy ¶ 4(a)(i), Respondent’s <amway88.net> and <amway99.net> domain names are confusingly similar to Complainant’s AMWAY mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights and legitimate interests in the <amway88.net> and <amway99.net> domain names. Policy ¶ 4(a)(ii) requires that Complainant first make a prima facie case to support its allegations before the burden of proof shifts to Respondent to show such rights. 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)). The Panel finds that Complainant made a prima facie case based on the arguments contained in the Complaint. Respondent failed to submit any response to these proceedings, which the Panel may take as evidence that Respondent lacks rights or legitimate interests in the disputed domain names. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). However, this Panel still examines the record in its entirety to determine whether Respondent has any such rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by either of the disputed domain names. Complainant indicates that it has never authorized Respondent to use its AMWAY mark in any domain name and that Respondent is not an affiliate or subsidiary of Complainant. Complainant also urges that Respondent is not one of Complainant’s independent business owners (“IBO”), but that even if Respondent were an IBO, Complainant does not allow even its authorized IBOs to use its AMWAY mark in domain names. The WHOIS information for the disputed domain names identifies the registrant as “yucai sun / sunyucai.” The Panel finds no evidence in the record to support a finding that Respondent is commonly known by the disputed domain names. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain names 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).
Complainant also urges that Respondent’s disputed domain names resolve to websites that feature information on Complainant’s AMWAY products and also offer Complainant’s AMWAY products for sale. The Panel finds that Respondent’s use of confusingly similar disputed domain names to offer Complainant’s own products for sale is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also Nat’l 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 Respondent has no rights to or legitimate interests in the disputed domain names containing Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant also contends that Respondent registered and used the disputed domain names in bad faith. The Panel finds that Respondent’s registration and use of the disputed domain names to sell Complainant’s products without permission causes a disruption of Complainant’s business and supports findings of bad faith registration and use under a Policy ¶ 4(b)(iii) analysis. 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 Caterpillar Inc. v. Vine, FA 97097 (Nat. Arb. Forum June 22, 2001) (“Respondent registered each of the disputed domain names in order to gain customers and to disrupt Complainant's business of authorizing dealers to sell its CATERPILLAR equipment.”).
The Panel is permitted to make a presumption in such circumstances that enjoys financial gain from Respondent’s unauthorized sale of Complainant’s AMWAY products. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in an attempt to intentionally attract Internet users to its website, for commercial gain, by creating a likelihood of confusion as to Complainant’s sponsorship or affiliation with the disputed domain name. The Panel finds that such conduct supports a finding of bad faith registration and use under Policy ¶ 4(b)(iv). See 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); see also AT&T Corp. v. RealTime Internet.com Inc., D2001-1487 (WIPO May 1, 2002) (“[U]se of domain names to sell Complainant’s goods and services without Complainant's authority . . . is bad faith use of a confusingly similar domain name.”).
The Panel finds that Respondent registered and used the disputed domain names in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amway88.net> and <amway99.net> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: February 15, 2011.
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