Lenovo (Beijing) Limited Corporation China v. xieshuxian / xieshuxian
Claim Number: FA1411001590335
Complainant is Lenovo (Beijing) Limited Corporation China (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is xieshuxian / xieshuxian (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lnovo.com>, registered with eName Technology Co., Ltd.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 17, 2014; the National Arbitration Forum received payment on November 17, 2014. The Complaint was received in both English and Chinese.
On November 17, 2014, eName Technology Co.,Ltd. confirmed by e-mail to the National Arbitration Forum that the <lnovo.com> domain name is registered with eName Technology Co.,Ltd. and that Respondent is the current registrant of the name. eName Technology Co.,Ltd. has verified that Respondent is bound by the eName Technology Co.,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 November 20, 2014, the Forum served the Chinese language Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 10, 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@lnovo.com. Also on November 20, 2014, 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 December 18, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (Ret.) 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.
Complainant
Complainant uses the LENOVO mark in connection with computers and related equipment and software. Complainant has registered the LENOVO mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,149,377, registered Sept. 26, 2006). The <lnovo.com> domain name is confusingly similar to the LENOVO mark as it differs by a single omitted letter.
Respondent is not commonly known by the <lnovo.com> domain name as the WHOIS record provides insufficient nexus. Further, Complainant has not authorized Respondent to use the mark. The <lnovo.com> domain name resolves to a website featuring links to third-parties, some of which compete with Complainant in the computer industry.
Respondent’s bad faith is demonstrated by Respondent’s use of the disputed domain name to promote links to competitors of Complainant, which disrupts Complainant’s business in violation of Policy ¶ 4(b)(iii). Further, Respondent’s use of the disputed domain name in connection with a click-through links website evinces Policy ¶ 4(b)(iv) bad faith as Respondent presumably generates profit through the promoted links. Finally, Respondent has engaged in typosquatting, which panels have deemed evidence of bad faith under Policy ¶ 4(a)(iii).
Respondent
Respondent did not submit a Response in this proceeding.
LANGUAGE OF THE PROCEEDINGS
The Registration Agreement is written in Chinese, thereby making Chinese the language of the proceedings. 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, concludes that the remainder of the proceedings may be conducted in English.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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.”).
Complainant uses the LENOVO mark in connection with computers and related equipment and software. Complainant states that it has registered the LENOVO mark with the USPTO (Reg. No. 3,149,377, registered Sept. 26, 2006), and claims that this registration evinces Policy ¶ 4(a)(i) rights in the mark. The Panel agrees that Complainant’s USPTO registration is sufficient to establish Complainant’s rights in the LENOVO mark for purposes of Policy ¶ 4(a)(i). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Complainant argues that the <lnovo.com> domain name is confusingly similar to the LENOVO mark as it differs by the omission of a single letter. The domain name specifically differs from the mark by the omission of the single letter “e,” and the addition of the generic top-level domain (“gTLD”) “.com.” Past panels have held that the affixation of a gTLD bears no consequence on the confusing similarity analysis. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Further, panels have found that a domain name remains confusingly similar to the incorporated mark when the domain name removes a single letter from the mark. See Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity); Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark). Accordingly, the Panel finds confusing similarity present in this case pursuant to Policy ¶ 4(a)(i).
Complainant has proven this element.
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.”).
Complainant argues that Respondent is not commonly known by the <lnovo.com> domain name as the WHOIS record provides no information to indicate otherwise. The WHOIS record lists “xieshuxian” as registrant of the disputed domain name. Further, Complainant claims it has not authorized Respondent to use the mark. The Panel agrees that the available evidence provides no reason to find Respondent commonly known by the <lnovo.com> name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant claims that disputed domain name resolves to a website featuring links to third-parties, some of which compete with Complainant in the computer industry. Complainant has provided a screenshot of the resolving website, which includes links such as, “TOP 5 LAPTOPS SALE,” “FIX WINDOWS XP ERRORS,” and “Lenovo Driver.” Complainant argues that such use demonstrates no bona fide offering of goods or services through the subject domain name, nor a legitimate noncommercial or fair use of the domain name. Panel determines that Respondent has made no bona fide offering of goods or services per Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Complainant has proven this element.
Complainant argues that Respondent’s bad faith is demonstrated by Respondent’s use of the disputed domain name to promote links to competitors of Complainant, which disrupts Complainant’s business in violation of Policy ¶ 4(b)(iii). The disputed domain name resolves to promote computer-related links including “TOP 5 LAPTOPS SALE” and “FIX WINDOWS XP ERRORS.” The Panel agrees that such links contain the requisite degree of competition required by Policy ¶ 4(b)(iii), and finds this is evidence of bad faith. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant argues that Respondent’s use of the disputed domain name in connection with a click-through links website evinces Policy ¶ 4(b)(iv) bad faith as Respondent presumably generates profit through the promoted links. Past panels have found bad faith under similar circumstances. The panel in Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), wrote, “[r]espondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).” Consequently, the Panel finds Respondent registered and is using the <lnovo.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant argues that Respondent has engaged in typosquatting, which panels have deemed evidence of bad faith under policy ¶ 4(a)(iii). The <lnovo.com> domain name differs from the LENOVO mark by the removal of the “e” from the mark. Of note, the panel in Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003), in considering the resemblance of the <zonelarm.com> domain name to the ZONEALARM mark wrote, “Respondent’s registration and use of a domain name that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).” The Panel similarly determines that Respondent’s behavior amounts to typosquatting, and finds typosquatting is evidence of bad faith under Policy ¶ 4(a)(iii).
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <lnovo.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: December 19, 2014
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