national arbitration forum

 

DECISION

 

Alticor Inc. v. wang chuan

Claim Number: FA1102001375215

 

PARTIES

Complainant is Alticor Inc. (“Complainant”), represented by R. Scott Keller of Warner Norcross & Judd LLP, Michigan, USA.  Respondent is wang chuan (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <amway-artistry.com>, registered with HICHINA ZHICHENG TECHNOLOGY LTD.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 28, 2011; the National Arbitration Forum received payment on March 1, 2011.

 

On February 28, 2011, HICHINA ZHICHENG TECHNOLOGY LTD. confirmed by e-mail to the National Arbitration Forum that the <amway-artistry.com> domain name is registered with HICHINA ZHICHENG TECHNOLOGY LTD. and that Respondent is the current registrant of the name.  HICHINA ZHICHENG TECHNOLOGY LTD. has verified that Respondent is bound by the HICHINA ZHICHENG TECHNOLOGY LTD. 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 March 9, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 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@amway-artistry.com.  Also on March 9, 2011, 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 March 31, 2011, 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 (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 a response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.    Respondent’s <amway-artistry.com> domain name is confusingly similar to Complainant’s AMWAY mark.

 

2.    Respondent does not have any rights or legitimate interests in the <amway-artistry.com> domain name.

 

3.    Respondent registered and used the <amway-artistry.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Alticor Inc., distributes its AMWAY products through a network of more than 3 million independent business owners.  Complainant’s AMWAY product line includes more than 450 personal care, nutrition and wellness, home care, home living, and commercial products.  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). 

 

Respondent, wang chuan, registered the disputed domain name on April 17, 2010.  The disputed domain name resolves to a website that offers information about Complainant’s products and offers Complainant’s products for sale. 

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that a trademark registration with the USPTO is sufficient proof of Complainant’s rights in the AMWAY mark under Policy ¶ 4(a)(i), even though Respondent resides in a jurisdiction outside the scope of the USPTO’s authority.  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). 

 

Respondent’s <amway-artistry.com> domain name is confusingly similar to Complainant’s AMWAY mark.  The disputed domain name incorporates Complainant’s entire mark, and adds the term “artistry,” which Complainant contends is the name of one of its lines of health and beauty products.  The Panel finds that the addition of a term descriptive of one of Complainant’s product lines does not sufficiently distinguish the disputed domain name from Complainant’s mark.  See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).  The disputed domain name also adds a hyphen and the generic top-level domain (“gTLD”) “.com,” which the Panel finds are inconsequential when making a Policy ¶ 4(a)(i) analysis.  See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy).  Accordingly, the Panel finds that Respondent’s <amway-artistry.com> domain name is confusingly similar to Complainant’s AMWAY mark for the purposes of Policy ¶ 4(a)(i). 

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).  

 

Rights or Legitimate Interests

 

Complainant alleges that Respondent lacks rights and legitimate interests in the

<amway-artistry.com> domain name.  Once Complainant has made a prima facie case in support of its allegations, the burden of proof shifts to Respondent to provide evidence of any right or legitimate interests it may have 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.”).  Respondent failed to set forth any affirmative evidence of its rights or legitimate interests in the disputed domain name.  Therefore, the Panel may presume that the allegations contained in Complainant’s Complaint are true and correct.  See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise).  Nevertheless, the Panel elects to consider the record in its entirety in order to make a complete determination as to Respondent’s rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).

 

The WHOIS database identifies the registrant of the <amway-artistry.com> domain name as “wang chuan.”  Complainant asserts that Respondent is in no way affiliated with or authorized by Complainant.  Although Complainant sells its products through a network of authorized independent business owners (“IBOs”), Complainant has reviewed its records and can find no record of an IBO with any of the contact information contained in the WHOIS record associated with the disputed domain name.  Complainant further asserts that even if Respondent was an IBO, Complainant does not allow its authorized IBOs to use its AMWAY mark in any domain name.  Complainant also does not allow use of its AMWAY mark on webpages without Complainant’s prior consent.  The Panel concludes that Respondent is not commonly known by the <amway-artistry.com> domain name and consequently lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).

 

Complainant alleges that Respondent is using the disputed domain name to resolve to a website that provides information about Complainant’s products and also offers Complainant’s “Artistry” brand products for sale.  The Panel finds that Respondent’s use of the disputed domain name to display information and attempt to sell Complainant’s products, without Complainant’s authorization, is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See 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); see also Chanel, Inc. v. Cologne Zone, D2000-1809 (WIPO Feb. 22, 2001) (finding that use of the complainant’s mark to sell the complainant’s perfume, as well as other brands of perfume, is not bona fide use).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii). 

 

Registration and Use in Bad Faith

 

The Panel finds that Respondent’s registration and use of the disputed domain name to resolve to a website which displays information regarding Complainant’s products, and attempts to sell Complainant’s products without Complainant’s authorization, disrupts Complainant’s business.  Respondent’s unauthorized sale of Complainant’s “Artistry” brand products interferes with Complainant’s ability to conduct its business.  Therefore, the Panel finds that Respondent has registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).  See Fossil, Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (transferring the <fossilwatch.com> domain name from the respondent, a watch dealer not otherwise authorized to sell the complainant’s goods, to the complainant); 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.”).

 

Respondent registered and is using the <amway-artistry.com> domain name in order to mislead Internet users into believing that it is a subsidiary or affiliate of Complainant, which Respondent is not.  This constitutes bad faith as it creates the false impression that Respondent is an authorized distributor of Complainant’s products.  The Panel finds that Respondent’s attempt to profit from the unauthorized sale of Complainant’s products by registering and using a domain name that creates a false sense of association between Complainant and Respondent is evidence of bad faith under 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 Complainant has satisfied Policy ¶ 4(a)(iii). 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <amway-artistry.com> domain name be TRANSFERRED from Respondent to Complainant. 

 

 

Sandra J. Franklin, Panelist

Dated:  April 7, 2011

 

 

 

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