Micron Technology, Inc. v. wang xingxing / shenzhen nanhuang electronics co., ltd
Claim Number: FA1701001710746
Complainant is Micron Technology, Inc. (“Complainant”), represented by John C. Cain of Fleckman & McGlynn, PLLC, Texas, USA. Respondent is wang xingxing / shenzhen nanhuang electronics co., ltd (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <micron-ic.com>, registered with HiChina Zhicheng Technology 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 Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2017; The Forum received payment on January 4, 2017. The Complaint was submitted in both Chinese and English.
On January 6, 2017, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <micron-ic.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 January 9, 2017, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of January 30, 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@micron-ic.com. Also on January 9, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 8, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant is a global manufacturer and retailer of semiconductor and computer-related devices. Complainant uses the MICRON mark in association with its business practices. Complainant registered the MICRON mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,142,670, registered Mar. 10, 1998). Additionally, Complainant registered the MICRON mark with the People’s Republic of China State Administration for Industry and Commerce (“SAIC”) (e.g., Reg. No. 1,485,914, registered Dec. 7, 2000). See Compl., at Attached Ex. E. Respondent’s <micron-ic.com> domain name is confusingly similar to Complainant’s MICRON mark because the mark is used in its entirety, adding the generic term “ic”, a hyphen, and the “.com” generic top level domain (“gTLD”). Specifically, Complainant notes that “ic” is a generic abbreviation for “integrated circuits,” which is representative of Complainant’s products.
Respondent does not have any rights or legitimate interests in the <micron-ic.com> domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the MICRON mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a non-commercial or fair use of the domain name. Respondent’s <micron-ic.com> domain name resolves to a website displaying Complainant’s mark and offering competing goods and services, presumably for Respondent’s profit. See Compl., at Attached Ex. G.
Respondent registered and is using <micron-ic.com> domain name in bad faith. Respondent’s <micron-ic.com> domain name contains identical content as the <www.nanhuangic.com> website, also operated by “Shenzhen Nanhuang Electronics Co., Ltd.” See Compl., at Attached Ex. G. “Shenzhen Nanhuang Electronics Co., Ltd.” was the respondent in a previous UDRP proceeding, thereby evincing the Respondent has a pattern of bad faith registrations. Additionally, the disputed domain name attempts to disrupt Complainant’s business by offering products in direct competition with Complainant under the MICRON mark. Respondent has at least constructive notice of Complainant and its rights to the MICRON mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Panel Note: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese. The Panel has reviewed the applicable rules on language of proceedings under the UDRP. 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.
1. Complainant is a United States company engaged in the business of a global manufacturer and retailer of semiconductor and computer-related devices.
2. Complainant has established its trademark rights in the MICRON mark as it registered the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,142,670, registered Mar. 10, 1998) and with the People’s Republic of China State Administration for Industry and Commerce (“SAIC”) (e.g., Reg. No. 1,485,914, registered Dec. 7, 2000).
3. Respondent registered the <micron-ic.com> domain name on December 1, 2012.
4. The <micron-ic.com> domain name resolves to a website displaying Complainant’s mark and offering competing goods and services, presumably for Respondent’s profit.
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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant is a global manufacturer and retailer of semiconductor and computer-related devices. Complainant uses the MICRON mark in association with its business. Complainant submits that it registered the MICRON mark with the USPTO (e.g., Reg. No. 2,142,670, registered Mar. 10, 1998). Additionally, Complainant submits that it registered the MICRON mark with SAIC (e.g., Reg. No. 1,485,914, registered Dec. 7, 2000). See Compl., at Attached Ex. E. The Panel accepts that evidence. The general consensus among Panels is that trademark registrations with the USPTO and other government agencies is sufficient to show rights in a mark. See Fossil Group, Inc. v. wuruima wu, FA 1544486 (Forum Mar. 21, 2014) (holding, “Complainant’s registration of the FOSSIL mark with trademark agencies worldwide, including the USPTO and SAIC, establishes Complainant’s rights in the FOSSIL mark pursuant to Policy ¶ 4(a)(i).”).Therefore, the Panel finds that Complainant’s USPTO and SAIC registrations are sufficient to show rights in the MICRON mark.
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s MICRON mark. Complainant argues that the <micron-ic.com> domain name is confusingly similar to Complainant’s MICRON mark because the mark is used in its entirety, adding the generic term “ic”, a hyphen, and the “.com” gTLD. Specifically, Complainant notes and the Panel accepts that “ic” is a generic abbreviation for “integrated circuits,” which is representative of Complainant’s products. Panels have determined that confusing similarity exists where [a disputed domain name] contains a complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy. Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016). Furthermore, Panels generally find “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark." Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000). In the instant case, the Panel concludes that Respondent’s <micron-ic.com> domain name is confusingly similar to Complainant’s MICRON mark.
It is now well established that 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 (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 (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.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s MICRON mark and to use it in its domain name, adding only the term “ic”, a generic abbreviation for “integrated circuits” which are representative of Complainant’s products;
(b) Respondent registered the disputed domain name on December 1, 2012;
(c) The domain name resolves to a website displaying Complainant’s mark and offering competing goods and services;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant submits that Respondent does not have any rights or legitimate interests in <micron-ic.com>. In support of its argument, Complainant submits that Respondent is not commonly known by the disputed domain name. WHOIS information associated with this case identifies Respondent as “wang xingxing” of “shenzhen nanhuang electonics co., ltd.” See Amend. Compl., at Attached Ex. B. “Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent . . . is not commonly known by the [disputed domain name] in any derivation.” SeeWells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003). Absent information to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name;
(f) Additionally, Complainant submits that it has not authorized or licensed Respondent to use the MICRON mark in any regard, nor is Respondent affiliated with Complainant. Complainant maintains that Respondent has not made a bona fide offering of goods or services, or a non-commercial or fair use of the domain name. To support its argument, Complainant illustrates that Respondent’s <micron-ic.com> resolves to a website displaying Complainant’s mark and offering competing goods and services, presumably for Respondent’s profit. See Compl., at Attached Ex. G. Panels generally find “that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).” Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010). Therefore, the Panel finds that Respondent does not have legitimate rights or interests in <micron-ic.com> pursuant to Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant submits that Respondent registered and is using the <micron-ic.com> domain name in bad faith. Complainant submits that Respondent has demonstrated a pattern of bad faith as “Shenzhen Nanhuang Electronics Co., Ltd.” was the respondent in a previous UDRP proceeding. See Compl., at Attached Ex. H. When “[c]omplainant has provided evidence that [a r]espondent has a history of UDRP and USDRP decisions decided against it[, the complainant has established] bad faith within the meaning of Policy ¶ 4(b)(ii).” Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015). The Panel finds that Respondent has registered the disputed domain in bad faith based on previous bad faith registrations.
Secondly, the disputed domain name attempts to disrupt Complainant’s business by offering products in direct competition with Complainant under the MICRON mark. If a “[r]espondent is appropriating [a c]omplainant’s mark to divert [c]omplainant’s customers to [r]espondent’s competing business[, then t]he Panel finds this diversion . . . evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).” DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005). Having regard to the evidence provided and referred to above, the Panel finds that Respondent registered and is using <micron-ic.com> in bad faith under the Policy.
Thirdly, Complainant argues that Respondent had actual or constructive notice of Complainant and its rights to the MICRON mark. Complainant contends that Respondent's offering of products in direct competition to Complainant under the MICRON mark indicates that Respondent had actual knowledge of Complainant's mark and rights. While constructive notice is generally regarded as insufficient to support a finding of bad faith, the Panel concludes that Respondent had actual notice of Complainant's mark and thus registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum Apr. 10, 2006) (stating that while mere constructive knowledge is insufficient to support a finding of bad faith, where the circumstances indicate that the respondent had actual knowledge of the complainant's mark when it registered the domain name, panels can find bad faith).
Finally, in addition and having regard to the totality of the evidence, the Panel
finds that, in view of Respondent’s registration of the disputed domain name using the MICRON mark and in view of the conduct that Respondent has
engaged in when using the domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <micron-ic.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated February 9, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page