NSK LTD. v. Li shuo
Claim Number: FA1701001712449
Complainant is NSK LTD. (“Complainant”), represented by Jeffrey P. Thannisch of Lorenz & Kopf, LLP, Michigan, USA. Respondent is Li shuo (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skfnsk.com>, registered with HiChina Zhicheng Technology Limited.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 13, 2017; the Forum received payment on January 13, 2017.
On January 17, 2017, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <skfnsk.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 17, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 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@skfnsk.com. Also on January 17, 2017, 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 February 15, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 is a global manufacturer providing industrial goods and services. Complainant uses the NSK mark in conjunction with its business operations. Complainant registered the NSK mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 857,857, registered Oct. 1, 1968). See Compl., at Attached Ex. A. Respondent’s <skfnsk.com> is confusingly similar to the NSK mark because it incorporates the mark in its entirety, adding “SKF” which is a third-party brand of bearing products which competes with Complainant, and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in <skfnsk.com>. Respondent is not commonly known by the disputed domain name. Complainant has not licensed or authorized the use of the NSK mark in any respect. Respondent has not made any bona fide offering of good or services, nor any legitimate non-commercial or fair use of the domain name. Respondent’s <skfnsk.com> resolves to a click-through page diverting users to non-authorized distributors of NSK products and competing hyperlinks presumably for Respondent’s profit. See Compl., at Attached Ex. G.
Respondent has registered and is using <skfnsk.com> in bad faith. Respondent’s attempts to attract users to a webpage offering goods and services in competition with Complainant’s services evinces bad faith under Policy ¶ 4(b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name, <skfnsk.com>, was registered on November 6, 2006.
The Panel finds that Complainant has not met its burden to show that it has rights or interests in a trademark that is confusingly similar to the disputed domain name, and, as such, dismisses the complaint.
The Panel further finds that, pursuant to UDRP Rule 11(a), persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
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 Panel finds that Complainant has not met its burden regarding confusing similarity. Complainant has adequately alleged its interests in and to the NSK mark; however, Complainant has no rights or interests in the SKF mark. Complainant alleges no nexus between it and the owner of the SKF mark. As such, Complainant essentially has standing to bring this claim regarding the NSK mark but not the SKF mark. See NIKE, Inc. and Nike Innovate, C.V. v. Mattia Lumini and Yykk Snc, FA 1679233 (FORUM July 15, 2016) (“Google, Inc. has not been joined as a Complainant in this matter and there is no nexus available through which Complainant can claim to have rights to the transfer of the <nikegoogle.com> domain name. Thus, the Panel dismisses the Complaint because Complainant has failed to establish rights in or to the GOOGLE mark per Policy ¶ 4(a)(i).”); see also Dell Inc. v. Ionel Adrian Nicolae, FA 1683104 (FORUM Aug. 22, 2016) (“Nvidia Corp. has not been joined as a Complainant in this matter and there is no nexus available through which Complainant can claim to have rights to the transfer of the <alienware-nvidia.xyz> domain name. Therefore, the Panel dismisses the Complaint because Complainant has failed to establish rights in or to the NVIDIA mark per Policy ¶ 4(a)(i).”).
As such, the Panel dismisses the complaint because Complainant has failed to establish rights in or to the disputed domain name, <skfnsk.com>. As Complainant has not met its burden in the first element of this matter, the Panel shall forego analysis of the subsequent elements.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be denied.
Accordingly, it is Ordered that the <skfnsk.com> domain name remain with the Respondent.
Kenneth L. Port, Panelist
Dated: February 16, 2017
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