Teledyne Technologies Incorporated v. Lv Ran / Qin Ye Zi Dong Hua Gong Cheng Shang Hai You Xian Gong Si
Claim Number: FA1708001743198
Complainant is Teledyne Technologies Incorporated (“Complainant”), represented by Mary Dalton Baril of McGuire Woods LLP, Virginia, USA. Respondent is Lv Ran / Qin Ye Zi Dong Hua Gong Cheng Shang Hai You Xian Gong Si (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <teledyne-cn.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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 4, 2017; the Forum received payment on August 4, 2017. The Complaint was submitted in both Chinese and English.
On August 10, 2017, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <teledyne-cn.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 August 18, 2017, the Forum served the Chinese langauge Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of September 7, 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@teledyne-cn.com. Also on August 18, 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 September 11, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 corporation that provides advanced technology and engineering goods and services. Complainant uses the TELEDYNE mark in conjunction with its business practices. Complainant registered the TELEDYNE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 637,429; registered Nov. 20, 1956). Respondent’s <teledyne-cn.com> is confusingly similar to the TELEDYNE mark because it incorporates that mark completely, while merely adding a hyphen, the geographically descriptive term “cn” (for “China”), and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in <teledyne-cn.com>. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the TELEDYNE mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <teledyne-cn.com> resolves to a website with no content.
Respondent registered and used <teledyne-cn.com> in bad faith. Respondent provided incorrect/incomplete WHOIS information, and likely had actual or constructive knowledge of Complainant—leading to an inference of nonexclusive bad faith under Policy ¶ 4(a)(iii). Respondent’s knowledge is further bolstered by its false claim that it was Complainant’s authorized dealer in China.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Teledyne Technologies Incorporated, of Thousand Oaks, CA, USA. Complainant is the owner of domestic and international registrations for the mark TELEDYNE, which it has used continuously since at least as early as 1956, in connection with its provision of advanced technological engineering goods and services.
Respondent is Lv Ran / Qin Ye Zi Dong Hua Gong Cheng Shang Hai You Xian Gong Si of Shang Hai, China. Respondent’s registrar’s address is indicated as Beijing, China. The Panel notes that <teledyne-cn.com> was registered on or about October 30, 2014.
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.”).
Panel Note: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. 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.
Complainant is a global corporation that provides advanced technology and engineering goods and services. Complainant uses the TELEDYNE mark in conjunction with its business practices. Complainant registered the TELEDYNE mark with the USPTO (e.g., Reg. No. 637,429; registered Nov. 20, 1956), and asserts that its registrations establish rights in the mark. Complainant also registered the TELEDYNE mark with government entities throughout Asia, including Japan, Hong Kong, Singapore, India, and Taiwan. Prior panels have found that registrations with the USPTO and other government entities are 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).”). The Panel here finds that Complainant’s registrations with the USPTO and other government agencies are sufficient to show rights in the TELEDYNE mark.
Complainant also contends that Respondent’s <teledyne-cn.com> is confusingly similar to the TELEDYNE mark because it incorporates that mark completely, while merely adding a hyphen, the geographically descriptive term “cn” (for “China”), and the “.com” gTLD. “[C]ommon geographic qualifiers or generic nouns can rarely be relied upon to differentiate the mark if the other elements of the domain name comprise a mark or marks in which another party has rights.” AXA China Region Ltd. v. KANNET Ltd., D2000-1377 (WIPO Nov. 29, 2000). Moreover, “the addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).” See Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003). Additionally, “it is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.” Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002). The Panel here finds that Respondent’s <teledyne-cn.com> is confusingly similar to the TELEDYNE mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes 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), 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). Complainant has met this burden.
Complainant asserts that Respondent does not have rights or legitimate interests in <teledyne-cn.com>. Complainant indicates that Respondent is not commonly known by the disputed domain name. WHOIS information associated with this case identifies respondent as “Lv Ran / Qin Ye Zi Dong Hua Gong Cheng Shang Hai You Xian Gong Si.” When nothing in the WHOIS record indicates that a respondent is commonly known by a disputed domain name, past panels have determined that the respondent is not known by that name. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the< google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”). Based on the WHOIS information, and Respondent’s failure to provide information contrary to Complainant’s assertions, the Panel here finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain name. Complainant provides evidence that Respondent’s <teledyne-cn.com> resolves to a website with no content. Inactive use of a domain name may not serve as a demonstration of rights under the Policy. See Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”). Given the resolution of Respondent’s website associated with <teledyne-cn.com>, the Panel here finds that no bona fide offering of goods or services or legitimate non-commercial or fair use of the domain name has been made under Policy ¶¶ 4(c)(i) or (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
Complainant has proven this element.
While Complainant has not made arguments under Policy ¶ 4(b), such arguments are not mandatory under the Policy—so long as Complainant shows bad faith use and registration in some manner. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant argues that Respondent registered and used <teledyne-cn.com> in bad faith. In arguing this, Complainant notes that Respondent provided incorrect/incomplete WHOIS information, and likely had actual or constructive knowledge of Complainant—leading to an inference of nonexclusive bad faith under Policy ¶ 4(a)(iii). Actual, not constructive, notice is recognized under the Policy. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). False WHOIS may also indicate bad faith. See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”). Complainant alleges its business is large and widespread, having gained significant fame and notoriety, and that Respondent’s knowledge of Complainant is bolstered by its false claim that it was Complainant’s authorized dealer in China. The Panel notes there is no evidence that supports Complainant’s contention. As to falsity of WHOIS information, Complainant cites the associated incomplete/incorrect addresses. Based on the deficient WHOIS data, and Respondent’s inaccurate assertions of an authorized business relationship with Complainant, the Panel finds that Respondent registered and used the domain name in bad faith.
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
DECISION
As Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <teledyne-cn.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: September 25, 2017
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