Direct Energy Marketing Limited v. Xushuaiweiren / xushuaiwei
Claim Number: FA1712001762707
Complainant is Direct Energy Marketing Limited (“Complainant”), represented by Meredith Phillips of IPWatch Corporation, Alabama, USA. Respondent is Xushuaiweiren / xushuaiwei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <directenergy.co>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 December 13, 2017; the Forum received payment on December 13, 2017.
On December 14, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <directenergy.co> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2018 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@directenergy.co. Also on December 14, 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 January 8, 2018, 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 retail, energy business that operates maintenance and repair services for electricity, gas, and renewable energy appliances and homes. Complainant has rights in the DIRECT ENERGY mark resulting from registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,658,962, registered Dec. 10, 2002). Respondent’s <directenergy.co> domain name is identical and confusingly similar to Complainant’s DIRECT ENERGY mark because the domain name incorporates Complainant’s federally registered mark in its entirety.
Respondent has no rights or legitimate interests in the <directenergy.co> domain name. Respondent is not commonly known by the DIRECT ENERGY mark. Additionally, Respondent is merely cybersquatting and the domain name does not resolve to an active site.
Respondent registered and used the <directenergy.co> domain name in bad faith. Respondent’s registration of the domain name prevents Complainant from registering the domain name incorporating Complainant’s mark. Additionally, Respondent causes consumer confusion by diverting users searching for Complainant to Respondent’s inactively held parked domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Direct Energy Marketing Limited, of Edmonton, Alberta, Canada. Complainant is the owner of international registrations for the mark DIRECT ENERGY, and numerous related marks which it has continuously used since at least as early as 2002, in connection with goods and services it provides in relation to supplying equipment and maintenance for electrical, gas, and renewable energy products.
Respondent is Xushuaiweiren / xushuaiwei, of Yunnan, China. Respondent’s registrar’s address is listed as Maharastra, India. The Panel notes that Respondent registered the <directenergy.co> domain name on or about July 20, 2017.
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.”).
Complainant claims rights in the DIRECT ENERGY mark when it registered it with the USPTO. USPTO registrations are sufficient to establish rights in a mark for the purposes of Policy ¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)). Here, Complainant has provided copies of its USPTO registrations of the DIRECT ENERGY mark (e.g., Reg. No. 2,658,962, registered Dec. 10, 2002). The Panel here finds Complainant has rights in the DIRECT ENERGY mark per Policy ¶ 4(a)(i).
Complainant asserts Respondent’s <directenergy.co> domain name is identical and confusingly similar to Complainant’s DIRECT ENERGY mark. While Complainant does not specifically argue why the domain name should be considered identical or confusingly similar, the Panel notes that the domain name incorporates the mark, less the space, and appends the country code top-level domain (“ccTLD”) “.co.” Removal of spaces and additions of TLDs are irrelevant to a Policy ¶ 4(a)(i) analysis. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). The Panel here finds Respondent’s <directenergy.co> domain name is identical to Complainant’s DIRECT ENERGY mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
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 Respondent has no rights or legitimate interests in the <directenergy.co> domain name because Respondent is not commonly known by the domain name or the DIRECT ENERGY mark. Generally, when a respondent fails to submit a response, WHOIS information may determine whether a respondent is commonly known by the at-issue domain 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).”). The Panel here notes that the WHOIS information identifies the Respondent as “xushuaiweiren.” Accordingly, the Panel finds that Respondent is not commonly known by the <directenergy.co> domain name per Policy ¶ 4(c)(ii).
Additionally, Complainant claims Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use at the <directenergy.co> domain name. Instead, Complainant argues Respondent’s site resolves into an inactive page that contains no content. Typically, inactive holding of a disputed domain name fails to amount to rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name). The Panel here finds that Respondent fails to make an active use of the <directenergy.co> domain name, which supports a finding that Respondent lacks any rights or legitimate interests per Policy ¶¶ 4(c)(i) and (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.
Complainant claims that Respondent registered and uses the domain name in bad faith by diverting confused users seeking Complainant to Respondent’s own domain. Generally, benefiting from consumer confusion by diverting users a complainant may be an indication of bad faith per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). The Panel here finds that engagement by Respondent in the behavior described above constitutes bad faith per Policy ¶ 4(b)(iv).
Further, Complainant claims that the mere fact Respondent’s domain name is inactive indicates bad faith registration and use. Inactively holding an at-issue domain name may demonstrate bad faith registration and use per Policy ¶ 4(a)(iii). See Indiana University v. Ryan G Foo / PPA Media Services, FA1411001588079 (Forum Dec. 28, 2014) (“Under the circumstances, Respondent’s seemingly inutile holding of the at-issue domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii).”). The Panel here finds that Respondent inactively held the <directenergy.co> domain name, thus supporting a finding of bad faith registration and use per Policy ¶ 4(a)(iii).
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 <directenergy.co> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 22, 2018
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