national arbitration forum

 

DECISION

 

Watts Water Technologies Inc. v. zhang che / tianjingshitanggufamenchangkaifaquwacixiaoshouchu

Claim Number: FA1111001416807

 

PARTIES

Complainant is Watts Water Technologies Inc. (“Complainant”), Massachusetts, USA.  Respondent is zhang che / tianjingshitanggufamenchangkaifaquwacixiaoshouchu (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <chinawatts.com>, registered with HiChina Zhicheng Technology Limited.

 

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 November 22, 2011; the National Arbitration Forum received payment on December 1, 2011. The Complainant was submitted in both Chinese and English.

 

On December 1, 2011, HiChina Zhicheng Technology Limited confirmed by e-mail to the National Arbitration Forum that the <chinawatts.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name.  HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited 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 December 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 December 27, 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@chinawatts.com.  Also on December 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 January 3, 2012, 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.

 

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.

 

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 <chinawatts.com> domain name is confusingly similar to Complainant’s WATTS mark.

 

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

 

3.    Respondent registered and used the <chinawatts.com> domain name in bad faith.

 

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

 

FINDINGS

Complainant, Watts Water Technologies Inc., is an international manufacturer of “innovative water solutions” for the plumbing, heating and water quality markets. Complainant owns trademark registrations for the WATTS mark with China’s State Administration for Industry and Commerce (“SAIC”) and the Canadian Intellectual Property Office (“CIPO”):

 

SAIC

Reg. No. 856,788                 registered July 21, 1996;

Reg. No. 856,798                 registered July 21, 1996; &

 

CIPO

Reg. No. TMA696,954        registered September 20, 2007.

 

Respondent, zhang che / tianjingshitanggufamenchangkaifaquwacixiaoshouchu, registered the <chinawatts.com> domain name on March 10, 2006. The disputed domain name resolves to Respondent’s commercial website selling copies of Complainant’s products.

 

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

 

Complainant provides evidence of its trademark registrations for the WATTS mark with the SAIC and CIPO.  Previous panels have accepted trademark registrations with the SAIC and CIPO as conclusive evidence of a complainant’s rights in a mark. See Norgren, Inc. v. sh ying zhe, FA 1318448 (Nat. Arb. Forum June 2, 2010) (holding that the complainant’s trademark registration with China’s State Administration for Industry and Commerce was sufficient to establish rights in the mark under Policy ¶ 4(a)(i)); see also Dollar Fin. Group, Inc. v. Bankshire Corp., FA 1013686 (July 30, 2007) (determining that registration of a trademark with CIPO conferred rights in the mark to Complainant under Policy ¶ 4(a)(i)).  The Panel here concludes that Complainant has adequately shown that it owns rights to the WATTS mark pursuant to Policy ¶ 4(a)(i).

 

Respondent’s <chinawatts.com> domain name is confusingly similar to Complainant’s WATTS mark because the disputed domain name merely combines the mark with the geographic identifier “china” and the generic top-level domain (“gTLD”) “.com.”  In Ticketmaster Corp. v. Kumar, FA 744436 (Nat. Arb. Forum Aug. 17, 2006), and Laboratoires De Biologie Vegetale Yves Rocher v. Choi, FA 104201 (Nat. Arb. Forum Mar. 22, 2002), the panels determined that adding geographic terms, such as “india” and “korea,” to a complainant’s mark did not negate a finding of confusing similarity.  The panel in Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003), held that a gTLD is irrelevant when analyzing confusing similarity.  Accordingly, the Panel holds that Respondent’s <chinawatts.com> domain name is confusingly similar to Complainant’s WATTS mark for the purposes of Policy ¶ 4(a)(i).

 

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

 

Rights or Legitimate Interests

 

Under Policy ¶ 4(a)(ii), Complainant must present a prima facie case that Respondent lacks rights and legitimate interests.  Based on the evidence and arguments provided in the Complaint, the Panel concludes that Complainant has satisfied this obligation.  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 or legitimate interests in the Domain Name.”).  Respondent has not provided any evidence of its own in support of its position, allowing the Panel to infer that Complainant’s contentions are true and that Respondent lacks rights and legitimate interests.  See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).  Nonetheless, the Panel will analyze the evidence against the Policy ¶ 4(c) factors to make a determination on Respondent’s rights and legitimate interests under Policy ¶ 4(a)(ii).

 

Complainant contends that Respondent has not been commonly known by the <chinawatts.com> domain name and cites the WHOIS record, which identifies the registrant as “zhang che / tianjingshitanggufamenchangkaifaquwacixiaoshouchu,” as evidence supporting this claim.  Complainant also asserts that it has not licensed, authorized or permitted Respondent to use the WATTS mark in any way.  Based on Complainant’s allegations, the WHOIS information, and the lack of a Response, the Panel concludes that Respondent is not commonly known by the disputed domain name and consequently lacks rights and legitimate interests in the disputed domain name according to Policy ¶ 4(c)(ii).  See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip’t as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also Educ. Broad Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).

 

Complainant argues that Respondent uses the <chinawatts.com> domain name to direct Internet users to Respondent’s commercial website selling copies of Complainant’s products, and uses the WATTS mark in both the name of the company displayed on the resolving website and in the disputed domain name.  Complainant contends that using Complainant’s mark to sell similar and competing goods without authorization does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  The Panel agrees.  See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).

 

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

 

Registration and Use in Bad Faith

 

Complainant alleges that Respondent sells copies of Complainant’s products at the <chinwatts.com> domain name on the resolving website.  Thus, the Respondent is competing with and is disrupting Complainant’s business by redirecting source of Complainant’s potential sales.  The Panel finds that this is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)). 

 

Respondent’s website resolving from the <chinawatts.com> domain name is presented as being owned and operated by a Chinese company, contains Complainant’s WATTS brand, and sells the same products and services.  The Panel finds that Respondent included Complainant’s mark as the dominant element in the <chinawatts.com> domain name in order to divert consumers to Respondent’s own commercial website, creating a likelihood of confusion as to the source, sponsorship or affiliation of the resolving website.  The Panel thus finds bad faith registration and use under Policy ¶ 4(b)(iv).  See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) because the respondent initially used the disputed domain name to sell educational services that targeted the complainant’s market).  

 

Respondent’s efforts to portray itself as Complainant and sell Complainant’s products reveal that Respondent was aware of Complainant and its rights in the WATTS mark.  The WHOIS information, which lists the city where Complainant initially formed its first joint venture, also indicates that Respondent had knowledge of Complainant.  The Panel finds that Respondent registered the <chinawatts.com> domain name in bad faith because it had notice of Complainant’s mark and rights prior to the domain name registration.  See Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum Dec. 16, 2002) (finding bad faith where the method by which the respondent acquired the disputed domain names indicated that the respondent was well aware that the domain names incorporated marks in which the complainant had rights); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration). 

 

The Panel concludes 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 <chinawatts.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Sandra J. Franklin, Panelist

Dated:  January 10, 2012

 

 

 

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