BALLUFF GMBH v. zhengshuang.li / stuttgart Technology co., LTD
Claim Number: FA1507001628872
Complainant is BALLUFF GMBH (“Complainant”), represented by Zhou Hang of Jiang San Jlao Law Firm, Germany. Respondent is zhengshuang.li / stuttgart Technology co., LTD (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <balluff.cn.com>, registered with Eranet International Limited.
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 Honorable Charles K. McCotter,Jr. (Ret.) as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and that the mediation process was terminated.
Complainant submitted a Complaint to the Forum electronically on July 15, 2015; the Forum received payment on July 21, 2015.
On July 21, 2015, Eranet International Limited confirmed by e-mail to the Forum that the <balluff.cn.com> domain name is registered with Eranet International Limited and that Respondent is the current registrant of the name. Eranet International Limited has verified that Respondent is bound by the Eranet International Limited registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On July 23, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 12, 2015 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@balluff.cn.com. Also on July 23, 2015, 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 August 17, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter,Jr. (Ret.) 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 to the CDRP Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the CDRP Policy, CDRP 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
Policy ¶ 4(a)(i)
Complainant is a manufacturer and distrubutor of automation products and sensors. Complainant has rights in the BALLUFF mark through its registration with China’s State Adminisitration for Industry and Commerce (“SAIC”) (Reg. No. 902543, registered on November 21, 1996). Respondent’s <balluff.cn.com> domain name is identical to the BALLUFF mark because it entirely contains the mark, and is differentiated by only the additions of the top-level domain designation “.cn.com,” which is a combination of a country code top-level domain (“ccTLD”) and a generic top-level domain (gTLD).
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <balluff.cn.com> domain name, as the available WHOIS information lists “zhengshuang.li” as Registrant Name and “stuttgart Technology co., LTD” as Registrant Organization. In addition, Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving webpage constitutes an inactive holding.
Policy ¶ 4(a)(iii)
Respondent registered or uses the disputed domain name in bad faith because the <balluff.cn.com> domain name resolves to an inactive webpage and because such use of the domain name misleads consumers into believing that the domain is associated with Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, BALLUFF GMBH, is a manufacturer and distrubutor of automation products and sensors. Complainant has rights in the BALLUFF mark through its registration with China’s State Adminisitration for Industry and Commerce (“SAIC”) (Reg. No. 902543, registered on November 21, 1996).
Respondent, zhengshuang.li / stuttgart Technology co., LTD, registered the <balluff.cn.com> domain name on September 10, 2014. The domain name resolves to an inactive webpage.
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 or is being used in bad faith.
The CDRP also requires that Complainant have paricipated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 (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 has rights in the BALLUFF mark under Policy ¶ 4(a)(i) through registration with the SAIC. See Norgren, Inc. v. sh ying zhe, FA 1318448 (Nat. Arb. Forum June 2, 2010) (holding that the complainant’s trademark registration with China’s SAIC was sufficient to establish rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <balluff.cn.com> domain name is identical to the BALLUFF mark under Policy ¶ 4(a)(i), because it entirely contains the mark, and is differentiated by only the additions of a second level domain name that corresponds to the ccTLD “.cn” and the gTLD “.com.”
Respondent is not commonly known by the <balluff.cn.com> domain name under Policy ¶ 4(c)(ii). The WHOIS information lists “zhengshuang.li” as Registrant Name and “stuttgart Technology co., LTD” as Registrant Organization. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name). As such, the Panel may find that Respondent is not commonly known by the <balluff.cn.com> domain name
Respondent fails to use the <balluff.cn.com> domain to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), because the domain name resolves to an inactive website. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
Respondent’s failure to make an active use of the domain name shows bad faith registration and use under Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith).
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 <balluff.cn.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter,Jr. (Ret.), Panelist
Dated: August 31, 2015
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