Klein Tools, Inc. v chenxinqi
Claim Number: FA1504001617328
Complainant is Klein Tools, Inc. (“Complainant”), represented by Tamara A. Miller of Leydig, Voit & Mayer Ltd., Illinois, USA. Respondent is chenxinqi (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <klentools.com> (the Domain Name), registered with Xin Net Technology Corporation.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 30, 2015; the Forum received payment on April 30, 2015.
On June 4, 2018, Xin Net Technology Corporation confirmed by e-mail to the Forum that the Domain Name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 June 11, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 2, 2018 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@klentools.com. Also on June 11, 2018, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 3, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
The Complainant’s contentions can be summarised as follows:
The Domain Name and the web site attached to it contain English words, therefore the Respondent is capable of understanding English and it would be expedient for these proceedings to be conducted therefore in English as the Respondent will not be prejudiced thereby.
The Complainant owns the mark KLEIN TOOLS used since 1857 and registered, inter alia in the USA since 1956. The mark is also registered in China where the Respondent is based. The Complainant has owned the domain name kleintools.com since 1998.
The Domain Name registered in 2018 resolves to a site offering lottery, betting, entertainment and sports related services. The Domain Name is confusingly similar to the Complainant’s Domain Name being a misspelling of the Complainant’s KLEIN TOOLS mark merely missing out the ‘i’ and adding the gTLD.com which is not sufficient to distinguish the Domain Name from the Complainant’s mark.
Respondent is not commonly known by the Domain Name and has not received any authorisation from the Complainant. Use of a Domain Name containing a third party trade mark to divert others to an unrelated commercial web site is not bona fide use or non commercial legitimate fair use. The Respondent does not have any rights or legitimate interests in the Domain Name.
The Respondent knew about the Complainants KLEIN TOOLS mark and registered the mark to confuse Internet users and to attract them for commercial gain and to disrupt the business of the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the mark KLEIN TOOLS used since 1857 and registered, inter alia in the USA since 1956. The mark is also registered in China where the Respondent is based. The Complainant has owned the domain name kleintools.com since 1998.
The Domain Name registered in 2018 has been used for a betting and lottery related site without authorization from the 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(f), 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 (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.”).
Preliminary Issue
Pursuant to UDRP Rule 11(a) the Panel agrees with the Complainant that since the Domain Name and the web site attached to it contain English words it is likely that the Respondent understands English and it is expedient that these proceedings be conducted in the English language as the Respondent will not be prejudiced thereby.
Identical or Confusingly Similar
The Domain Name consists of a typosquatted version of the Complainant's KLEIN TOOLS mark (which is registered in USA and China with first use in commercial recorded in the USA as 1865 for tools) and the gTLD .com. The Panel agrees that misspellings such as omission of a letter do not distinguish the Domain Name from the Complainant's KLEIN TOOLS trade mark pursuant to the Policy. See Hallelujah Acres Inc v Manila Indus., Inc., FA 805029 (Forum Nov 15, 2006).
The gTLD .com does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the KLEIN TOOLS mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Respondent has used the site attached to the Domain Name to link to a third party business for a lottery and betting site. The Respondent’s conduct is confusing and did not make it clear that there was no commercial connection with the Complainant. See Seiko Kabushiki Kaisha v CS info Tech, FA 198795 (Forum Dec. 6, 2003)(Diverting customers who are looking for products related to a particular trade mark to an unrelated website is not bona fide offering of goods or services or a legitimate non commercial fair use).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
In the opinion of the panelist the use made of the Domain Name in relation to a third party commercial site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant because of the similarity with the Complainant’s KLEIN TOOLS mark of the word ‘Klen’ used with ‘Tools’. The combination of these two elements makes it more likely than not that the Respondent was aware of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant. (See Am. Online Inc v Tencent Commc’ns Corp., FA 93668 (Forum Mar 1, 2000.)(finding bad faith where a respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a site sponsored by the respondent.)
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and (iv) and there is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <klentools.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 6, 2018
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