Watts Water Technologies Inc. v. zhang yan / tianjintangfawatesifamenxiaoshouyouxiangongsi
Claim Number: FA1410001584232
Complainant is Watts Water Technologies Inc. (“Complainant”), Massachusetts, USA. Respondent is zhang yan / tianjintangfawatesifamenxiaoshouyouxiangongsi (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tfwatts.com>, registered with HiChina Zhicheng Technology Limited.
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 October 10, 2014; the National Arbitration Forum received payment on October 20, 2014. The Complaint was submitted in both Chinese and English.
On October 10, 2014, HiChina Zhicheng Technology Limited confirmed by e-mail to the National Arbitration Forum that the <tfwatts.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 October 23, 2014, the Forum served the Chines language Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 12, 2014 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@tfwatts.com. Also on October 23, 2014, 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 December 2, 2014, 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.
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <tfwatts.com> domain name is confusingly similar to Complainant’s WATTS mark.
2. Respondent does not have any rights or legitimate interests in the <tfwatts.com> domain name.
3. Respondent registered and uses the <tfwatts.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
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’s USPTO registration of its WATTS mark satisfies the Policy ¶ 4(a)(i) requirement to show rights in a mark. 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).
Respondent’s <tfwatts.com> domain name simply adds the letters “t” and “f” the generic top-level domain (“gTLD”) “.com” to Complainant’s WATTS mark. Previous panels have consistently found that a domain name differing from a mark by a couple of letters does not distinguish the domain name from the mark, and that the attachment of a gTLD is irrelevant to the Policy ¶ 4(a)(i) analysis. See Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”). Thus, the Panel finds that Respondent’s <tfwatts.com> domain name is confusingly similar to Complainant’s WATTS 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 alleges that Respondent is not commonly known by the <tfwatts.com> domain name. The WHOIS information identifies “Zhang Yan” as the registrant of the disputed domain name. Further, Complainant states that Respondent is neither licensed nor authorized to use the WATTS mark. Given the lack of evidence to infer otherwise, the Panel finds that Respondent is not commonly known by the <tfwatts.com> domain name pursuant to 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 domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant also argues that Respondent has not provided any bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name. Complainant claims that Respondent is using a website nearly identical to Complainant’s to pass itself off as Complainant, offering nearly identical products, utilizing the same color-scheme that Complainant uses, and refers to itself as “Watts Valve (China) Co., Ltd.” Previous panels have held that a respondent passing itself off as the complainant does not qualify as a bona fide offering of goods or services, or a legitimate noncommercial or fair use of a disputed domain name pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as 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 pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). Thus, the Panel finds that Respondent’s use of the <tfwatts.com> domain name does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the disputed domain name to disrupt Complainant’s business by offering products that are in direct competition with Complainant. Previous panels have generally held that offering competing products similar to that of the complainant constitutes as a disruption of business pursuant to Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website). Thus, the Panel finds that Respondent’s use of the disputed domain name to offer competing products to that of Complainant disrupts Complainant’s business and is evidence of bad faith under Policy ¶ 4(b)(iii).
Respondent uses the <tfwatts.com> domain name to intentionally divert Internet users to its own website, no doubt for commercial gain. Prior panels have found this to be bad faith under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark). Accordingly, the Panel finds that Respondent’s use of the disputed domain name to intentionally increase Internet traffic to its own website constitutes bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant argues that due to the extensive use and fame of Complainant’s WATTS mark and the obvious link between the content of Respondent’s disputed domain name and Complainant’s business, it is inconceivable that Respondent registered the disputed domain name without actual or constructive knowledge of Complainant’s rights in the WATTS mark. The Panel agrees and finds that, due to the link between Complainant’s and Respondent’s websites, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See 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); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name.”).
Complainant also argues that Respondent has so closely mirrored Complainant’s website that Respondent is attempting to pass itself off as Complainant. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”).
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 <tfwatts.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 8, 2014
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