ZIH Corp. v. ou yang lin q
Claim Number: FA1712001761403
Complainant is ZIH Corp. (“Complainant”), represented by Brett A. August of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is ou yang lin q (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cnzebra.com>, registered with Guangdong JinWanBang Technology Investment Co., Ltd..
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 December 5, 2017; the Forum received payment on December 5, 2017. The Complaint was submitted in both Chinese and English.
On December 5, 2017, Guangdong JinWanBang Technology Investment Co., Ltd. confirmed by e-mail to the Forum that the <cnzebra.com> domain name is/are registered with Guangdong JinWanBang Technology Investment Co., Ltd. and that Respondent is the current registrant of the name. Guangdong JinWanBang Technology Investment Co., Ltd. has verified that Respondent is bound by the Guangdong JinWanBang Technology Investment Co., Ltd. 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 December 7, 2017, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of December 27, 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@cnzebra.com. Also on December 7, 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 December 29, 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 registered the ZEBRA mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,274,816, registered Apr. 24, 1984). See Compl. Ex. B. Respondent’s <cnzebra.com> domain name is confusingly similar to Complainant’s mark as it contains Complainant’s mark in its entirety before adding the “cn” geographic term and the “.com” generic top-level-domain (“gTLD”).
Respondent has no rights or legitimate interests in the <cnzebra.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as Complainant for Respondent’s commercial gain.
Respondent registered and uses the <cnzebra.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business by diverting Internet users from Complainant’s websites to Respondent’s website. Respondent intentionally creates confusion as to the ownership by or affiliation with Complainant for Respondent’s commercial gain. Respondent uses the disputed domain name to conduct a phishing scheme. Respondent had actual or constructive knowledge of Complainant’s rights in the ZEBRA mark prior to registration of the <cnzebra.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the <cnzebra.com> domain name on April 7, 2011.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
The Panel further finds that 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.
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 the disputed domain name, <cnzebra.com>, is confusingly similar to Complainant’s valid and subsisting trademark, ZEBRA. Complainant has adequately pled its rights and interests in this trademark. Respondent arrives at the disputed domain name by merely adding the abbreviation “cn” to the trademark in its entirety and the g TLD “.com.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, authority or permission to register the disputed domain name. There is no evidence in the record that indicates Respondent is commonly known by the disputed domain name.
Respondent also apparently does not use the disputed domain for any bona fide offering of goods or services or a legitimate noncommercial or fair use because it attempts to pass off as Complainant for its own commercial gain. Passing off can show a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant asserts Respondent has wholly incorporated the ZEBRA mark into the disputed domain name to lure visitors into mistakenly believing it is Complainant. See Compl. Ex. H. The Panel therefore finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
As such, the Panel finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant alleges Respondent attempts to disrupt Complainant’s business by diverting Internet users from Complainant’s websites to Respondent’s website. Use of a disputed domain name to divert Internet users from a complainant’s website to a respondent’s competing website can evince a finding a bad faith per Policy ¶ 4(b)(iii). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). Complainant contends Respondent uses the disputed domain name to pass off as Complainant’s Chinese division and compete with Complainant’s printer sales business. See Compl. Ex. H.
As such, the Panel finds that Respondent acted in bad faith per Policy ¶ 4(b)(iii).
Next, Complainant contends Respondent intentionally creates confusion as to the ownership by or affiliation with Complainant for Respondent’s commercial gain. Use of a disputed domain name to create confusion as to the affiliation of a complainant with the respondent’s competing website in question can support a finding of bad faith per Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Complainant contends Respondent registered a confusingly similar domain name to attract Internet users otherwise seeking Complainant to Respondent’s competing printer sales business. See Compl. Ex. H.
On this claim as well the Panel finds that Respondent acted in bad faith per Policy ¶ 4(b)(iv).
Next, Complainant argues Respondent uses the disputed domain name to conduct a phishing scheme. Using a confusingly similar domain name to phish for personal or financial information can provide evidence of bad faith registration and use within the meaning of Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant argues Respondent utilizes the disputed domain name to deceive Internet users into disclosing their personal and financial information via the unauthorized use of Complainant’s mark on the resolving website. See Compl. Ex. H.
Thus, the Panel finds Respondent’s bad faith use and registration within the meaning of Policy ¶ 4(a)(iii).
Last, Complainant asserts Respondent had actual or constructive knowledge of Complainant’s rights in the ZEBRA mark prior to registration of the <cnzebra.com> domain name. Given the nature of the use of the disputed domain name and the totality of the circumstances, the Panel finds that Respondent had actual prior knowledge of Complainant’s trademark and its rights thereto.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <cnzebra.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: December 29, 2017
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