QlikTech International AB v. shenzhen kejianuoyouxiangongsi / liang wu
Claim Number: FA1212001478158
Complainant is QlikTech International AB (“Complainant”), represented by Amy G. Marino of Williams Mullen, Virginia, USA. Respondent is shenzhen kejianuoyouxiangongsi / liang wu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <iqlik.com>, registered with Bizcn.com, 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.
The Honourable Neil Anthony Brown QC as Panelist.
On January 3, 2013, Bizcn.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <iqlik.com> domain name is registered with Bizcn.com, Inc. and that Respondent is the current registrant of the name. Bizcn.com, Inc. has verified that Respondent is bound by the Bizcn.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 January 11, 2013, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of January 31, 2013 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@iqlik.com. Also on January 11, 2013, the Chinese language 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 February 6, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honourable Neil Anthony Brown QC 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant made the following contentions.
1.Complainant, QlikTech International AB, is a business intelligence software company founded in Sweden that produces a variety of customized software products, including QlikView, which uses patented in-memory association technology that allows users to make quick and sophisticated visual analysis and reports of large volumes of documents, data, or information from various formats and applications. Complainant’s products and services have been recognized by the software industry for numerous industry awards and are sold and advertised throughout the world, in a variety of media, including print, and the Internet at <www.QlikView.com>, and in brochures and signs at Complainant’s sales locations.
2.Complainant provides evidence that it is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the QLIK mark (e.g., Reg. No. 2,657,563, registered December 10, 2002). Complainant also provides evidence that it owns trademark registrations with the World Intellectual Property Organization (“WIPO”) for the QLIK mark (e.g., Reg. No. 839,118, registered May 7, 2012).
3.Respondent’s <iqlik.com> domain name is nearly identical to Complainant’s QLIK mark as it only adds the letter “i” and the generic top-level domain (“gTLD”) “.com” to the disputed domain name.
4.Respondent has no rights or legitimate interests in the disputed domain name.
i. Respondent is not known individually, as a business, or in any other manner by the domain, or by the name “IQLIK” generally.
ii. Respondent is using Complainant’s marks, including its Q design logo, to pass itself off as Complainant in order to advertise and sell unauthorized and/or counterfeit versions of Complainant’s products.
5.Respondent has registered and is using the disputed domain name in bad faith.
i.Respondent registered the dispute domain name primarily for the purpose of disrupting Complainant’s business.
ii.Respondent intentionally and for commercial gain attempts to attract consumers to its website by creating a likelihood of confusion with Complainant’s federally-registered marks.
iii.Respondent knew of Complainant’s business and its rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
3. Respondent registered the <iqlik.com> domain name on August 10, 2010. Respondent has then used the domain name in various stratagems to pass itself off as Complainant in order to advertise and sell unauthorized and/or counterfeit versions of Complainant’s products.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese. 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.
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."
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.
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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark. Complainant argues that it is a business intelligence software company founded in Sweden that produces a variety of customized software products, including QlikView, which uses patented in-memory association technology that allows users to make quick and sophisticated visual analysis and reports of large volumes of documents, data, or information from various formats and applications. Complainant contends that its products and services have been recognized by the software industry for numerous industry awards and are sold and advertised throughout the world, in a variety of media, including print, and the Internet at <www.QlikView.com>, and in brochures and signs at Complainant’s sales locations. Complainant asserts that it is the owner of trademark registrations with the USPTO for the QLIK mark (e.g., Reg. No. 2,657,563, registered December 10, 2002). See Complainant’s Exhibit 3 and 4. Complainant also argues and provides evidence that it owns trademark registrations with WIPO for the QLIK mark (e.g., Reg. No. 839,118, registered May 7, 2012). See Complainant’s Exhibit 9 through 12. The Panel finds that although Respondent appears to reside in China, Policy ¶ 4(a)(i) and UDRP precedent require only that Complainant establish rights in some jurisdiction. See 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). Therefore, the Panel finds that Complainant’s trademark registrations with the USPTO and WIPO are sufficient for Complainant to establish its rights in the mark under Policy ¶ 4(a)(i). See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i)).
The second question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s QLIK mark. Complainant asserts that Respondent’s <iqlik.com> domain name is nearly identical to Complainant’s QLIK mark as it only adds the letter “i” before Complainant’s mark. The Panel finds that the addition of a letter to the beginning of the disputed domain name does not distinguish Respondent’s domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Amazon.com, Inc. v. Ikhizamah, D2002-1168 (WIPO Mar. 17, 2003) (holding that the <zamazon.com> domain name was confusingly similar to the complainant’s AMAZON.COM mark). Complainant argues that Respondent adds the gTLD “.com” to the disputed domain name. The Panel finds that the addition of a gTLD does nothing to eliminate confusing similarity under Policy ¶ 4(a)(i). See Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Nat. Arb. Forum Oct. 17, 2007) (“[T]he inclusion of the generic top-level domain ‘.com’ is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.”). Thus, the Panel determines that Respondent’s <iqlik.com> domain name is confusingly similar to Complainant’s QLIK mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s QLIK mark and to use it in its domain name, adding only the letter “i” before the trademark which can only convey to the internet user that the domain name relates to the products of Complainant produced under its QLIK mark and that the domain name will lead to a website dealing with the same subject, neither of which is true;
(b) Respondent has then used the domain name in various stratagems to pass itself off as Complainant in order to advertise and sell unauthorized and/or counterfeit versions of Complainant’s products;
(c) Respondent has engaged in these activities without the consent or approval
of Complainant;
(d) Complainant contends that Respondent is not known individually, as a business, or in any other manner by the domain, or by the name “IQLIK” generally. Complainant asserts that the detailed records from the WHOIS database show that the registrant of the disputed domain name is listed as “shenzhen kejianuoyouxiangongsi / liang wu.” See Complainant’s Exhibit 1. The Panel notes that Respondent does not provide any additional evidence showing that it is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
(e) Complainant argues that Respondent is using Complainant’s marks, including its Q design logo, to pass itself off as Complainant in order to advertise and sell unauthorized and/or counterfeit versions of Complainant’s products. Complainant asserts that Respondent, on its disputed domain webpage, uses Complainant’s QLIKVIEW and Q logo design to identify itself as a “Certified QLIKVIEW partner,” to direct Internet users to contact Respondent at “sales@iqlik.com”, and to “advertise innovative business intelligence solutions Qlikview.” See Complainant’s Exhibits 14 and 15. Complainant contends that Respondent, on the disputed domain name’s webpage, states that its scope of business is, in part, the following: “Business Intelligence (BI) delivery and optimization by understanding your business needs, you customize the right business intelligent solutions, and the use of the revolutionary business intelligence products, Qlikview through our powerful implementation team.” See Complainant’s Exhibit 16 and 17. Complainant argues that Respondent further displays screenshots of the unauthorized and/or counterfeit software on its “Experience” page, describing the screenshot as providing solutions for “retail analysis” and “sales management.” See Complainant’s Exhibit 18 and 19. The Panel finds that Respondent’s use of the disputed domain name to attempt to pass itself off as Complainant is not 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 Nokia Corp. v. Eagle, FA 1125685 (Nat. Arb. Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was 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 pursuant to Policy ¶ 4(c)(iii)); see also eLuxury.com Inc. v. WangJunJie, FA 1075554 (Nat. Arb. Forum Nov. 30, 2007) (concluding that the sale of counterfeit products is evidence that the respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered the domain name primarily for the purpose of disrupting Complainant’s business. Complainant contends that consumers who are familiar with Complainant are likely to find Respondent’s website when they enter Complainant’s mark as the web address or by performing an Internet search for Complainant’s goods or services. Complainant asserts that Respondent’s disputed domain name resolves to a website using Complainant’s marks, including Complainant’s logo, to offer unauthorized products and services in direct competition with Complainant. See Complainant’s Exhibits 15 and 17. Complainant argues that Respondent displays screenshots of the unauthorized and/or counterfeit software on its website. See Complainant’s Exhibits 18 and 19. The Panel finds that Respondent’s use of the disputed domain name to offer Complainant’s products and counterfeit products disrupts Complainant’s business under Policy ¶ 4(b)(iii). 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 Louis Vuitton Malletier S.A., L.L.C. v. David, FA 1138296 (Nat. Arb. Forum Mar. 5, 2008) (concluding that the complainant’s business is disrupted by the respondent’s registration and use of the disputed domain name for the purpose of selling counterfeit products).
Secondly, Complainant asserts Respondent intentionally and for commercial gain attempts to attract consumers to its website by creating a likelihood of confusion with Complainant’s federally-registered marks. Complainant contends that Respondent will likely profit from this consumer confusion when an Internet user inadvertently purchases an unauthorized product or service from Respondent. Complainant argues that Respondent displays screenshots of the unauthorized and/or counterfeit software on its website. See Complainant’s Exhibits 18 and 19. The Panel finds that Respondent’s use of the disputed domain name to attract Internet users for its own commercial gain constitutes bad faith use and registration under Policy ¶ 4(b)(iv). See Fanuc Ltd v. Mach. Control Servs., FA 93667 (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a likelihood of confusion with the complainant's mark by using a domain name identical to the complainant’s mark to sell the complainant’s products); see also Affliction, Inc. v. Chinasupply, FA 1223521 (Nat. Arb. Forum Oct. 23, 2008) (finding that the respondent attempts to commercially gain by creating confusion as to the complainant’s connection with the website by selling counterfeit products).
Thirdly, Complainant contends that Respondent knew of Complainant’s business and its rights in the mark. Complainant argues that Respondent’s notice of Complainant’s rights in the QLIK mark is evidenced by Respondent’s numerous uses of Complainant’s mark, including the use of Complainant’s distinctive Q design logo. The Panel finds that, due to the Respondent’s use of Complainant's mark on its webpage, Respondent had actual knowledge of Complainant’s rights in the mark. Therefore, the Panel holds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Fourthly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the QLIK mark and in view of the conduct that Respondent engaged in when using it, Respondent registered and used the disputed domain name in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <iqlik.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: February 7, 2013
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