NSK LTD. v. Xu Yan / ChangZhou City Thinker Network Technology Co., Ltd.
Claim Number: FA1612001709111
Complainant is NSK LTD. (“Complainant”), represented by Jeffrey P. Thennisch of Lorenz & Kopf LLP, Michigan, USA. Respondent is Xu Yan / ChangZhou City Thinker Network Technology Co., Ltd. (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rhp-nsk.com>, registered with Beijing Innovative Linkage Technology Ltd. dba dns.com.cn.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2016; the Forum received payment on December 22, 2016.
After numerous requests, the Registrar, Beijing Innovative Linkage Technology Ltd. dba dns.com.cn, has not confirmed to the Forum that <rhp-nsk.com> is registered with Beijing Innovative Linkage Technology Ltd. dba dns.com.cn or that the Respondent is the current registrant of the name. Registrar’s non-compliance has been reported to ICANN. The Forum’s standing instructions are to proceed with this dispute.
On December 30, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 19, 2017 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@rhp-nsk.com. Also on December 30, 2016, 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 January 31, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it is a global manufacturer and producer of bearing products for use in the manufacturing operations and goods of others ranging from industrial and machinery applications, to appliances and automotive products, through large mining operations and some of the largest industrial applications in the world, including the bearings used to operate the Panama Canal. Complainant operates and sells its products throughout the world employing at least 30,454 employees and generating annual revenues in excess of seven (7) billion dollars ($7,000,000,000) as measured in U.S. dollars in 2015. Complainant owns both the RHP and NSK marks through its registrations of the marks in the United States Patent and Trademark Office, respectively in 2003 and 1968. Complainant utilizes both its NSK and RHP mark(s) in the United States and throughout the world to promote, offer, and sell products and goods.
According to Complainant, the disputed domain name is confusingly similar to its marks because it combines both marks, with a hyphen added between them, and the “.com” generic top-level domain (“gTLD”) appended thereto.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Complainant has not licensed or authorized the use of its marks in any respect. Respondent has not made any bona fide offering of goods or services, nor any legitimate non-commercial or fair use of the domain name. The disputed domain name resolves to a click-through page diverting users to non-authorized distributors of Complainant’s products and competing hyperlinks presumably for Respondent’s profit.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith. Respondent’s attempts to attract users to a webpage offering goods and services in competition with Complainant’s services constitutes bad faith usage under Policy ¶ 4(b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the marks RHP and NSK dating back respectively to 2003 and 1968.
The disputed domain name was registered in 2011.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent is using the disputed domain name to resolve to a web site that contains links to products and services that compete with those of 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.”).
Before considering the three elements of the Policy, the Panel must rule on the language of the proceedings.
Complainant requests that this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Chinese language Registration Agreement. Complainant argues that Respondent’s use of the English language for its web site, to sell unauthorized and competing products, indicates an understanding of the language. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as relevant include evidence of Respondent’s understanding of the language of the Complaint. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding shall be in English.
The disputed domain name combines both of Complainant’s RHP and NSK marks, with a hyphen added between them, and the “.com” gTLD appended thereto, creating confusing similarity. Combining marks furthers the notion of confusing similarity, and hyphens and gTLDs are disregarded under the Policy. See Textron Innovations Inc. v. Sheng Liang / Sarawina, FA 1622906 (Forum July 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) where Respondent’s <greenleetextron.com> domain name merely combined Complainant’s TEXTRON and GREENLEE marks and added the “.com” generic top-level domain suffix.); see also Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”). Therefore, the Panel finds that the disputed domain name <rhp-nsk.com> is confusingly similar to the RHP and NSK marks under Policy ¶ 4(a)(i).
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: the WHOIS information associated with the disputed domain name identifies Respondent as “Xu Yan / ChangZhou City Thinker Network Technology Co., Ltd.” Panels have held that a respondent is not commonly known by a disputed domain name based on WHOIS information and a lack of information to the contrary. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name.
Respondent has not made any bona fide offering of goods or services, nor any legitimate non-commercial or fair use of the domain name. The disputed domain name resolves to a click-through page diverting users to non-authorized distributors of NSK products and competing hyperlinks presumably for Respondent’s profit. Panels have held that respondents using domain names to direct users to competing hyperlinks or sell complainant’s goods are not using the domain name in connection with bona fide offering of goods or services or a legitimate non-commercial use. See Nike, Inc. v. Dias, FA 135016 (Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). The Panel finds that Respondent’s use of the disputed domain name does not constitute a bona fide or legitimate use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as noted above, Respondent uses the disputed domain name to attempt to attract users to a webpage offering goods and services in competition with Complainant’s services. This constitutes bad faith use under Policy ¶ 4(b)(iv). See ShipCarsNow, Inc. v. Wet Web Design LLC, FA1501001601260 (Forum Feb. 26, 2015) (“Respondent’s use of the domain name to sell competing services shows that Respondent is attempting to commercially benefit from a likelihood of confusion. Therefore the Panel finds that a likelihood of confusion exists, that Respondent is attempting to commercially benefit from Complainant’s mark, and that Complainant has rights that predate any rights of the Respondent, all of which constitutes bad faith under Policy ¶ 4(b)(iv).”). Therefore, the Panel finds that Complainant has registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rhp-nsk.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 31, 2017
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