Alticor Inc. v. Zhang Qin
Claim Number: FA1302001483629
Complainant is Alticor Inc. (“Complainant”), represented by Kenneth A. Coleman of Warner Norcross & Judd LLP, Michigan, USA. Respondent is Zhang Qin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amway-nutrilite.com>, registered with HICHINA ZHICHENG TECHNOLOGY LTD.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 5, 2013; the National Arbitration Forum received payment on February 6, 2013. The Complaint was submitted in both English and Chinese.
On February 25, 2013, HICHINA ZHICHENG TECHNOLOGY LTD. confirmed by e-mail to the National Arbitration Forum that the <amway-nutrilite.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 February 26, 2013, the Forum served the Chinese language Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 18, 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@amway-nutrilite.com. Also on February 26, 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 March 28, 2013, 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <amway-nutrilite.com> domain name is confusingly similar to Complainant’s AMWAY and NUTRILITE marks.
2. Respondent does not have any rights or legitimate interests in the
<amway-nutrilite.com> domain name.
3. Respondent registered and used the<amway-nutrilite.com> domain name in bad faith.
B. Respondent failed to submit a timely Response in this proceeding.
Complainant holds almost 2000 trademark registrations in 150 countries for its AMWAY family of marks, which it has used for more than 50 years. Complainant also holds 660 trademark registrations in 140 countries for its NUTRILITE mark, which has been used commercially for more than 70 years. Complainant uses approximately 1500 domain names incorporating the AMWAY or NUTRILITE marks.
Respondent is using the <amway-nutrilite.com> domain name to pose as a distributor of Complainant and to sell products in competition with Complainant.
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 Panel finds that Complainant has established rights in its AMWAY and NUTRILITE marks through its trademark registrations with the U.S. Patent and Trademark Office (“USPTO”) and elsewhere around the world, including in China, where Respondent resides. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <amway-nutrilite.com> domain name is confusingly similar to Complainant’s AMWAY and NUTRILITE marks, as it simply combines the two marks. Respondent also adds the gTLD “.com” and a hyphen to the disputed domain name, neither of which are significant. Therefore, the Panel finds that Respondent failed to distinguish the disputed domain name from Complainant’s marks. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant); see also Nintendo of Am. Inc. v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (“the addition of one world famous trademark to another world famous trademark does not create a new or different mark.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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.”).
Complainant contends that Respondent is not commonly known by the <amway-nutrilite.com> domain name. The WHOIS records list “Zhang Qin” as the registrant of the disputed domain name, which is not similar to the disputed domain name. Complainant states that it has not authorized Respondent to use its AMWAY or NUTRILITE marks, and Respondent is not an affiliate of Complainant’s. Complainant states that it does not even allow its authorized distributors to use its marks in a domain name. Therefore, the Panel finds that Respondent is not commonly known by 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).
Complainant contends that Respondent uses the <amway-nutrilite.com> to appear as if it is an authorized distributor of Complainant and to sell Complainant’s products. It is not legitimate to use Complainant’s marks to offer Complainant’s own products for sale, in direct competition with Complainant. Thus, the Panel finds that Respondent’s use of the disputed domain names is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the respondent’s disputed domain names resolves to websites offering products and services in direct competition with those offered under [the complainant’s] mark, the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that the term “Amway” has no meaning other than Complainant’s mark and that Respondent could have no other purpose than to use Complainant’s marks in bad faith to illegitimately profit from the association with Complainant. The Panel agrees and finds that Respondent registered and uses the <amway-nutrilite.com> domain name in bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Household Int’l, Inc. v. Cyntom Enterprises, FA 95784 (Nat. Arb. Forum Nov. 7, 2002) (“Just as the employment of a well-known name for no particularly good reason undermines any claim to legitimate interest, so it may also support an inference of a bad-faith attempt to use the name to harass or exploit its legitimate owner.”)
Respondent is using the <amway-nutrilite.com> domain name to create the false impression that Respondent is an authorized distributor of Complainant, a further demonstration of bad faith. See Laboratories De Biologie Vegetale Yves Rocher v. Jung Choi, FA 104201 (Nat. Arb. Forum, Mar. 22, 2002) (finding that Respondent is not an authorized retailer of complainant’s products and it is improper to use a domain name implying the contrary.)
The Panel finds that Complainant has satisfied 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 <amway-nutrilite.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 2, 2013
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