Chung-Hwa Wideband Best Network Co., Ltd. v. Jaybad Shi
Claim Number: FA1108001404102
Complainant is Chung-Hwa Wideband Best Network Co., Ltd. (“Complainant”), represented by Lunyin Cheng, Taiwan. Respondent is Jaybad Shi (“Respondent”), Taiwan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <orzmap.com>, registered with GoDaddy.com, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 22, 2011; the National Arbitration Forum received payment on August 22, 2011.
On August 23, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <orzmap.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 September 1, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 21, 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@orzmap.com. Also on September 1, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 September 26, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant uses its ORZMAP mark in connection with providing audio and video broadcasting services over the Internet.
Complainant owns a trademark registration for the ORZMAP mark on file with the Hong Kong Trade Marks Registry (“HKTMR”) (Reg. No. 301,068,084, registered March 10, 2008).
Respondent registered the <orzmap.com> domain name on June 9, 2011.
The disputed domain name resolves to a website featuring defamatory and misleading articles and statements about Complainant.
Respondent’s <orzmap.com> domain name is substantively identical to Complainant’s ORZMAP mark.
Respondent does not have any rights to or legitimate interests in the domain name <orzmap.com>.
Respondent registered and uses the <orzmap.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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, pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules, the Panel may decide this administrative proceeding on the basis of Complainant's undisputed representations, and may draw such inferences as 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 a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has rights in its ORZMAP trademark under Policy ¶ 4(a)(i) by reason of its registration of the mark with a trademark authority, the HKTMR. This is true without regard to whether the mark is registered in the jurisdiction in which Respondent resides. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007), and Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007), holding that a trademark registration in any country adequately demonstrates a complainant’s right in a mark for purposes of the Policy even where that registration is in a country different from that of a respondent.
The domain name here in issue consists only of Complainant’s ORZMAP mark combined with the generic top-level domain (“gTLD”) “.com.” The domain name is therefore substantively identical to Complainant’s ORZMAP trademark. See, for example, Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000), and Reichert, Inc. v. Leonard, FA 672010 (Nat. Arb. Forum May 24, 2006)(a)(i).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant has the obligation to present a prima facie showing that Respondent has no rights to or legitimate interests in the contested domain name, whereupon the burden shifts to Respondent to prove that it has such rights or interests. See TotalFinaElf E&P USA, Inc. v. Farnes, FA 117028 (Nat. Arb. Forum Sept. 16, 2002):
In order to bring a claim under the Policy, Complainant must first establish a prima facie case. Complainant’s [initial burden] is to provide proof of valid, subsisting rights in a mark that is similar or identical to the domain name in question.
Complainant has satisfied this initial burden. Because Respondent has not responded to the allegations of the Complaint, we may conclude that Respondent has not demonstrated any rights to or legitimate interests in the disputed domain name. See CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that a respondent’s failure to produce requested documentation supports a finding for a complainant); see also Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003):
A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.
Nonetheless, we will examine the evidence of record, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that there is no evidence in the record before us to suggest that Respondent is commonly known by the <orzmap.com> domain name. Moreover, the WHOIS information for the disputed domain name identifies the registrant only as “Jaybad Shi,” which does not resemble the disputed domain name. Therefore, we conclude that Respondent is not commonly known by the disputed domain name so as to have demonstrated that it has rights to or legitimate interests in the contested domain name under Policy ¶ 4(c)(ii).
We next observe that Complainant asserts, and Respondent does not deny, that the website resolving from Respondent’s domain name features articles that defame Complainant and provide misleading information about Complainant. This use of the domain does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See Rockstar, Inc. v. Belis, FA 1266184 (Nat. Arb. Forum July 20, 2009), and Gold Dust West Casino, Inc. v. Barnett, FA 1374240 (Nat. Arb. Forum Mar. 30, 2011).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
When conducting a Policy ¶ 4(a)(iii) analysis, we may consider the totality of the circumstances without being limited to the factors enumerated in Policy ¶ 4(b). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000):
[T]he examples of [bad faith] are intended to be illustrative, rather than exclusive.
See also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy do not represent an exhaustive list of bad faith evidence).
Respondent has evidently registered and uses the <orzmap.com> domain name solely for the purpose of defaming Complainant. This is evidence of bad faith registration and use of the domain under Policy ¶ 4(a)(iii). See Pladson v. Tollefson, FA 1388762 (Nat. Arb. Forum June 13, 2011), and Eagle Hill-Southport School, Inc. v. Abrams, FA 1364298 (Nat. Arb. Forum Feb. 1, 2011), both holding that a respondent’s posting of criticism of Complainant at a domain name containing a complainant’s mark shows bad faith registration and use of that domain.
For this reason, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <orzmap.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 18, 2011
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